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The Evolution of the 
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The Evolution of the 
Constitution of the United States 

Showing that it is a Development of Progressive 

History and not an Isolated Document 

Struck Off at a Given Time or 

an Imitation of English 

or Dutch Forms of 

Government 



By 

Sydney George Fisher 






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Preface 

Histories of the Constitution usually describe the 
labors of its framers in the Convention of 1787 and the 
contests of political parties over the adoption of the in- 
strument by the requisite number of States in the fol- 
lowing year, together with such changes or developments 
as have taken place since that time. The works which 
have touched on its sources or origin have treated it as 
invented by the convention which framed it, or have 
sought in England or other European countries for 
forms of government which were like it or might have 
suggested its various provisions. 

Having for a long time been convinced that the Con- 
stitution is neither an invention nor an imitation, but 
almost exclusively a native product of slow and gradual 
growth, I have in this book undertaken to trace back, 
through previous American documents in colonial times, 
every material clause of it These documents are very 
numerous, and consist of twenty-nine colonial charters 
and constitutions, seventeen Revolutionary constitutions, 
and twenty-three plans of union, — in all, sixty-nine dif- 
ferent forms of government which were either in actual 
or in attempted operation in America during a period of 
about two hundred years, from 1584 to 1787. These 
constituted the school of thought, the experiments, and 

3 



Preface 

the training which in the end produced the national 
government under which we now Hve. 

The time of two hundred years was sufficiently long, 
and the sixty-nine different forms of government were 
certainly numerous and varied enough, to bring about 
the final result ; and they account for the final result in 
a more clear, complete, and satisfactory manner than 
any of the theories of sudden inspiration or imitation 
of England or Holland that have been broached. 

In order to show the evolution in all its details, I have 
divided two of the chapters into sections. Each section 
traces back a clause of the Constitution through all the 
previous documents, with quotations from each docu- 
ment showing the gradual development, the experience 
that was acquired, or the experiments that were made. 
This has made necessary a great deal of small print, and 
sometimes rather long quotations from the old docu- 
ments, which were very verbose. But the reader has it 
all before him, and can, in most instances, see at a glance 
the nature of the development without any laborious 
search through the sixty-nine documents. I have also 
tried to lessen his efforts, wherever I could, by com- 
ments and summaries. 

Besides this detailed analysis, there are chapters giving 
a general view of the growth and discussing the sup- 
posed resemblances to European forms of government. 
The last chapter deals with Mr. Campbell's theory that 
part of the Constitution and many other American 
institutions were derived from Holland. 

Philadelphia, February, 1897. 



Contents 



CHAPTER I. 

PAGE 

Confused Ideas as to the Origin of the Constitution . . ii 



CHAPTER II. 
The Colonial Charters and Constitutions 26 

CHAPTER III. 
The Constitutions of 1776 , 70 

CHAPTER IV. 
The English Sources of the Constitution 90 

CHAPTER V. 

The Evolution from the Colonial Charters Shown in 

Detail 105 

CHAPTER VI. 
The Evolution of Federalism 215 

CHAPTER VIL 

The Evolution of Federalism Shown in Detail 267 

5 



Contents 



CHAPTER VIII. 

PAGE 

Clauses of the Constitution which were of Short De- 
velopment 310 



CHAPTER IX. 
Dutch Sources 315 

APPENDIX. 
Constitution of the United States 375 



Documents in the Evolution from the 
Colonial Charters 



1. Sir Walter Raleigh' s Charter, 1584. 

2. Virginia Charter, 1606. 

3. Virginia Charter, 1609. 

4. Virginia Charter, 1611-12. 

5. New England Charter, 1620. 

6. Grant of New Hampshire, 1629. 

7. Massachusetts Charter, 1629. 

8. Maryland Charter, 1632. 

9. Grant of New Hampshire, 1635. 

10. Fundamental Orders of Connecticut, 1 638. 

11. Grant of Maine, 1639. 

12. Connecticut Charter, 1662. 

13. Charter of Carolina, 1663. 

14. Rhode Island Charter, 1663. 

15. Grant to the Duke of York, 1664. 

16. Concessions of East Jersey, 1665. 

17. Charter of Carolina, 1665. 

18. Locke's Carolina Constitution, 1669. 

19. Grant to the Duke of York, 1674. 

20. Concessions of West Jersey, 1677. 

21. Commission for New Hampshire, 1680. 

22. Pennsylvania Charter, 1681. 

23. Pennsylvania Frame of April 2, 1683. 

24. Pennsylvania Frame, 1683. 

25. Massachusetts Charter, 1691. 

26. Pennsylvania Frame, 1696. 

27. Pennsylvania Charter of Privileges, 1701. 

28. Explanatory Massachusetts Charter, 1726. 

29. Georgia Charter, 1732. 

7 



Documents in the Evolution 

30. New Hampshire Constitution, begun December 21, 1775 ; 
finished January 5, 1776. 

31. South Carohna Constitution, adopted March 26, 1776. 

32. Virginia Constitution, begun May 6, 1776 ; adopted June 
29, 1776. 

33. New Jersey Constitution, begun May 26, 1776 ; adopted 
July 3, 1776. 

34. Delaware Constitution, begun August 27, 1776; adopted 
September 21, 1776. 

35. Pennsylvania Constitution, begun July 15, 1776 ; adopted 
September 28, 1776. 

36. Maryland Constitution, begun August 14, 1776; finished 
November 11, 1776. 

37. North CaroHna Constitution, begun November 12, 1776; 
finished December 18, 1776. 

38. Georgia Constitution, begun October i, 1776 ; finished Feb- 
ruary 5, 1777. 

39. New York Constitution, begun July 10, 1776; finished 
April 20, 1777. 

40. Vermont Constitution, begun July 2, 1777 ; finished July 

8, 1777. 

41. Rejected Massachusetts Constitution, 1778. 

42. South Carolina Constitution, passed as an act of assembly 
March 19, 1778 ; went into effect November, 1778. 

43. Rejected New Hampshire Constitution, 1778. 

44. Massachusetts Constitution, begun September i, 1779 ; fin- 
ished March 2, 1780. 

45. New Hampshire Constitution, begun June 12, 1781 ; fin- 
ished October 31, 1783; adopted June 2, 1784. 

46. Vermont Constitution, 1 786. 
The Constitution, 1787. 



Documents in the Evolution of Federalism 



1. New England Confederation of 1643. 

2. Commission of Council for Foreign Plantations, 1660. 

3. William Penn's Plan of Union, 1696. 

4. Report of Board of Trade on union of New York with other 
colonies, 1696. 

5. D'Avenant's Plan of 1698. 

6. A Virginian' s Plan, in ' ' An Essay on the Government of 
the English Plantations on the Continent of America," 1701. 

7. Livingston's Plan, 1701. 

8. Earl of Stair's Proposals, 1721. 

9. Plan of the Lords of Trade, 1721. 

10. Daniel Coxe's Plan, in "A Description of the English 
Province of Carolina," 1722. 

11. Kennedy's Plan, 1751. 

12. Franklin's Plan, 1754. 

13. Richard Peters' s Plan, 1754. 

14. Hutchinson's Plan, 1754. 

15. Plan of the Lords of Trade, 1754. 

16. Dr. Samuel Johnson's Plan, 1760. 

17. Galloway's Plan, 1774. 

18. Franklin's Articles of Confederation, 1775. 

19. The Articles of Confederation, 1778. 

20. Drayton's Articles of Confederation, 1778. 

21. Webster's Sketches of American Policy, 1785. 

22. Randolph's Plan, 1787. 

23. Pinckney's Plan, 1787. 
The Constitution, 1787. 



The Evolution of the 
Constitution of the United States 



CHAPTER I. 



CONFUSED IDEAS AS TO THE ORIGIN OF THE CONSTITU- 
TION. 

To set men thinking and incite them to conduct in- 
vestigations of their own is often more important than 
to persuade and convince them. No words of Mr. Glad- 
stone have been so much considered by the American 
people, and none have aroused them to so much re- 
search, as those in which he said that *'as the British 
Constitution is the most subtle organism which has pro- 
ceeded from progressive history, so the American Con- 
stitution is the most wonderful work ever struck off at 
a given time by the brain and purpose of man." 

At first glance there seems to be a compliment in the 
striking, clear-cut language of the great English states- 
man, and if the phrase had been applied to some na- 
tions — the French, for example — they would probably 
continue to think it complimentary. But along with 
the first impression of a compliment the Anglo-Saxon 
instinct of Americans received an impression which it 

II 



Evolution of the Constitution 

resented. Our people were at first pleased, but the 
next moment they were irritated at the thought that 
their government had been made off-hand. 

They have the reputation of being smart and quick, 
— smarter and quicker than their cousins the British, — 
and they rather like to be told so. But when you tell 
them that they were smart and quick in creating a 
political institution you touch another and far deeper 
feeling. You cut them off from their past ; and ven- 
eration for their past, even their far-distant past, is a 
passion which, though often secretly nourished, fills a 
large part of their lives. And so it has come to pass 
that, of all the sentences the Liberal leader of England 
ever wrote, there is none which Americans have been 
so anxious to refute as the one in which he doubtless 
thought he was saying what would be most surely 
acceptable to them. 

Soon after his assertion became generally known, dis- 
sent from it began to appear, here and there, in ad- 
dresses and newspaper and magazine articles, and now 
there are whole books on the subject, all laboring to 
show that the Constitution was not " struck off at a given 
time," but that its source and lines of development 
stretch far back into the past. 

Unfortunately, these learned gentlemen who trace the 
sources of the Constitution do not agree with one an- 
other. In fact, there is a most extraordinary and even 
ridiculous contradiction in the sources they assign. Mr. 
Bryce, in his great work, "The American Common- 
wealth," finds the sources in the British government 
of King, Lords, and Commons, and he is followed by 

12 



Confused Ideas as to its Origin 

Taylor, Stevens, and others, with variations of the same 
general opinion ; while Foster, in his recent work on 
the Constitution, seems somewhat inclined to go back 
to Mr. Gladstone's view. But Mr. Campbell, in his 
"Puritan in Holland, England, and America," denies 
all English sources, and gives our institutions an origin 
in Holland. 

When we look further into the general subject of the 
sources of American institutions, municipal as well as 
constitutional, we find the same tendency to assign 
queer foreign origins. The New England township sys- 
tem, according to some learned people, is of German 
origin. The New England town, they say, especially 
in colonial times, with its common land and self-govern- 
ment, almost exactly resembled the old Teutonic village. 

Between the occurrence of these two resemblances 
centuries of time elapsed when such towns were un- 
known to the race and forgotten by it. But a few 
centuries are a mere trifle to a man who has detected 
one of these mystical resemblances. By a little skilful 
language, a ** doubtless" or a " perhaps" or an ingenious 
hypothesis, he will easily jump aeons of time and oceans 
of space. Only let him find in Mexico or Yucatan a 
building or some pottery with an outline like some- 
thing in Persia, and five thousand years and three thou- 
sand miles of ocean are nothing. He will put volcanoes 
under the water and raise islands, and then an ancient 
continent, until he has made history to suit him. 

Every generation seems to have its crop of these ex- 
traordinary suggestions and hypotheses, which their ad- 
vocates soon extend beyond their proper sphere of mere 

13 



Evolution of the Constitution 

suggestions and insist that they are certainties. For 
many years after the Revolution it was supposed that 
some of the American Indians were descended from a 
lost tribe of Welshmen who came to this continent 
under a leader called Madoc. Remains of burial mounds 
and ancient customs were found, which the learned 
insisted were very like remains in Wales, and they 
heaped up the suggestions until they had what they 
thought was proof Fortunately, the craze had passed 
away when the tribe of Modoc Indians became promi- 
nent soon after the Civil War, or we might have had 
it continued indefinitely. 

During the same period many people believed that all 
our Indians were descendants of the lost tribes of Israel. 
They found many resemblances, and the one which im- 
pressed them most was that some of the Indians had 
cities of refuge like the Israelites. Cooper satirized 
these people in his novel " Oak Openings," in which 
there is a character who proves the connection by the 
passage in the Psalms, '' God shall wound the head of 
his enemies, and the hairy scalp of such a one as goeth 
on still in his wickedness." But these ancient fancies 
are hardly any worse than Mr. Campbell's notion that 
our American institutions, including the New England 
town system, are derived from Holland. 

I admit that there is great fascination in these specu- 
lations, and I admit that there may possibly be some- 
thing more than fascination in the theory of the recur- 
rence of ideas and institutions at long intervals in the 
history of a race. That passage in Du Chaillu's '' Viking 
Age" in which he asserts that the Norsemen, the ances- 

14 



Confused Ideas as to its Origin 

tors of the English and Americans, had a federal govern- 
ment like that of the United States, is certainly most 
interesting and impressive : 

" Every Herad was independent of the Fylki in its local affairs, 
and every Fylki was independent one from the other, each hav- 
ing self-government. When the affairs of the country required 
the presence of all the people, then the boendr of the Herads and 
Fylki met together at a general Thing, called Allsherjar Thing 
(Thing of all the hosts), and all had to abide by the decision 
taken . . . The closest approach to this ancient form of govern- 
ment is that of the United States. ' ' 

But before we resort to these far-fetched and roman- 
tic speculations we should exhaust the nearer and more 
accurate method, and this is what the writers on the 
sources of the American Constitution have failed to do. 
Taking the Constitution as it was framed in 1787, they 
immediately look for something in Europe from which 
they assume it must have been copied, instead of tracing 
its origin backward from itself through the two hundred 
years of the colonial period. 

If T find on American soil the footprints of a man, and 
wish to discover whence he came, I surely ought not to 
assume at once that he is a foreigner and take the next 
steamer for England or Holland to see if I can find foot- 
prints over there that are like his. It would be better, 
it seems to me, to start backward on his trail from the 
very spot where I find it ; for it may be that he is a native, 
and I may be able to follow his tracks for hundreds of 
miles in this country, and, when I come to his house, 
find that he and his ancestors have been living there for 

15 



Evolution of the Constitution 

many generations. In any event, I should follow back 
his track until it ends on the sea-shore, and after that 
search for him in other countries. 

This is, I believe, the only sound, legitimate, and sci- 
entific way to trace the origin of a pubHc document or 
institution. We must go back, step by step, in the 
direct line of ancestry, and keep in that line until it 
ends. There must be no jumping, no wanderings aside, 
and no searching for vague resemblances in the world 
at large. 

If the writers on the sources of the Constitution had 
followed this plan there would, I think, be less dis- 
agreement among them, or at least not the extraordi- 
nary contradiction which we now find. The contradic- 
tion follows naturally enough from their method ; for 
as soon as they leave the direct line of growth and be- 
gin to search for resemblances everywhere they will find 
plenty of them. Human nature is in a general way 
much the same all the world over, and human beings 
have been laboring for many centuries and encounter- 
ing the same problems and conditions in one country 
as in another. Within recent years vast quantities of 
historical details of almost every country have been 
published, and a man who has a fancy for some par- 
ticular nation can easily frame a specious argument to 
show how other nations have apparently copied from it. 

There have been instances of direct and literal imita- 
tion ; but they are comparatively rare, and very rare 
among the Anglo-Saxon race. The instances where 
one nation has been influenced in a general way by 
what it knows of the workings of institutions in another 

i6 



Confused Ideas as to its Origin 

nation are more numerous ; but in these instances there 
is not what would properly be called an imitation or a 
taking. Very often the institutions of the foreign coun- 
try are considered as an example of what should not be 
done. Some of the provisions of our own Constitution 
were influenced in this w^ay by what were supposed to 
be evils in the English system. 

In other cases a nation, having to solve a problem 
which has troubled it for many years, works out in time 
what seems to be a solution, and is the more convinced 
that it will prove successful because something like it 
has been adopted by another country. The foreign in- 
stitutions are used in these instances argumentatively, 
and are not imitated in the true sense of the word, be- 
cause the nation has an experience of its own with which 
it is working, and it uses the foreign institution merely 
to reinforce its own ideas. 

For example, in colonial times our people were very ' 
familiar with the veto power in the colonial governors, ' 
and also in the king. The governors could, in many 
instances, veto the laws of the assemblies immediately 
on their passage, and the same laws had to be submitted 
to the king, who had a certain number of years, usually 
about five, to examine them, and at the end of that 
time, if he disapproved, he could annul them. These 
vetoes of governors and king were absolute. They killed 
the laws, and there was no arrangement for passing the 
laws over their veto by a two-thirds vote. But the peo- 
ple suffered so much inconvenience from these absolute 
vetoes that when they came to make their own State 
constitutions in the Revolution they usually gave their 

2 17 



(vC. 



Evolution of the Constitution 

governors no veto power at all, until at last New York 
hit upon the plan of a modified veto, which could be 
overcome by a two-thirds vote of the legislature ; and 
when the National Constitution was framed this same 
modified veto was given to the President. It is cer- 
tainly not an imitation of the veto power of the English 
king, for it was developed solely out of American expe- 
rience of the evils of the king's absolute veto. 

The United States Senate is, as we shall see, a gradual 
development from the Governor's Council of colonial 
times, which was first a mere advisory council of the 
governor, afterwards a part of the legislature sitting with 
the assembly, then a second house of legislature sitting 
apart from the assembly, as an upper house ; sometimes 
appointed by the governor, sometimes elected by the 
people, until it gradually became an elective body, with 
the idea that its members represented certain districts 
of land, usually the counties. It had developed thus far 
when the National Constitution was framed, and it was 
adopted in that instrument so as to equalize the States 
and prevent the larger ones from oppressing the smaller 
ones. This was accomplished by giving each State two 
Senators, so that large and small were alike. The lan- 
guage in the Constitution describing the functions of 
the Senate was framed principally by John Dickinson, 
who at that time represented Delaware, — one of the 
smaller States of the Union, — which had suffered in 
colonial times from too much control by Pennsylvania. 

The Senate as it exists to-day is therefore primarily 
the result of our own experience. But some writers 
insist on seeing in it an imitation of the British House 

i8 



Confused Ideas as to its Origin 

of Lords, and Mr. Campbell, finding that the States- 
General of the Netherland Republic was composed of 
representatives of states and that each state had only- 
one vote, and that the framers of our Constitution were 
familiar with Netherland institutions, jumps to the con- 
clusion that the United States Senate was a Dutch im- 
portation. 

If it really had been an imitation from the Dutch, 
there would be some evidence of it in the debates of the 
Constitutional Convention. The Dutch resemblance 
would have been urged by some as a reason in its favor 
and by others as a reason against it. Afterwards, when 
the Constitution was before the people for adoption and 
closely discussed and criticised in numerous pamphlets 
and newspapers, the Dutch imitation, if there had been 
one, would have been surely referred to either by friends 
or by enemies. But Mr. Campbell cites no evidence of 
this sort, and, as a matter of fact, there is none. 

The sources of our Constitution are to be found in the 
colonial period of about two hundred years which pre- 
ceded the framing of the Constitution, in 1787. Lit- 
erally, the time began with Sir Walter Raleigh's charter 
of 1 584, which makes a period of two hundred and three 
years. Those two hundred years were ample for forma- 
tion and growth, and they cannot be safely skipped. 
But writers have thus far dismissed them, or summarized 
them in a sentence or two, and rushed off to Europe to 
look for foreign sources. 

It must be confessed that the supposed foreign sources 
make easier and more interesting work. The material 
is all at hand, has been well analyzed and arranged by 

19 



Evolution of the Constitution 

eminent scholars, and all educated people are more or 
less familiar with it. But our colonial history is an un- 
known land of scattered material, — long, wordy docu- 
ments difficult to read, — and has been so neglected, and 
the little research that has been made in it so stupidly 
done, that most people instinctively avoid it. There is 
supposed to be little or nothing in it, and a habit has 
grown up of believing that all of value or interest in our 
history began with the Revolution. 

But that despised colonial period contains all our be- 
ginnings ; and not only our beginnings, but a large part 
of our maturity ; for at the time the Constitution was 
framed, in 1787, our people had had a vast experience in 
constitution-making, — greater and more varied, I am 
inclined to think, than any other people of the world. 
They had been living under charters from the Crown, — 
constitutions of their own making, — and some of them 
without either charters or constitutions, for nearly two 
centuries, and during the Revolution they had nearly all 
made new constitutions, under which they had been 
living for ten or more years. 

In fact, our experience of constitution-making and 
constitution-working previous to 1787 covered a much 
longer period than our experience since that year. Our 
modern experience has dealt with larger populations and 
vaster problems, but it covers a period of less than one 
hundred and ten years, while the previous experience 
was of two hundred years, and was more varied, experi- 
mental, and elementary. 

When Massachusetts sent her delegates, in the year 
1787, to frame the National Constitution, she had had 

20 



Confused Ideas as to its Origin 

over a hundred and fifty years' experience of constitu- 
tion-tinkering. During that time she had Hved under 
two charters, a constitution, and an interregnum^ when 
she had neither charter nor constitution and was under 
the direct rule of the Crown. Her first charter was so 
hberal that she had enjoyed for fifty years what was in 
effect independence. She elected her own governors, 
coined her own money, and was not obliged to send her 
laws to England for approval. Her second charter was 
just the reverse, and gave her a taste of something very 
near to despotism. During the Revolution she made for 
herself a constitution which was rejected by her people, 
but before the Revolution closed she made another, which 
was accepted. She had had a double experience of 
constitution-making during the seven years of the Revo- 
lution, and, taken all in all, a very severe and long prep- 
aration for her part in the national document of 1787. 

Virginia had had very much the same experience and 
training, and for a longer period of time. Pennsylvania 
had been living for more than ten years under a consti- 
tution which she had made for herself in 1776, — a most 
bungling instrument, with which the majority of her 
people were heartily disgusted. Previous to that she 
had been living under an excellent constitution of her 
own making for seventy-five years, before which she 
had lived under several constitutions, or frames, as they 
were then usually called, none of them successful. 

Other colonies had had greater or less experience, and 
it was certainly all very varied. When we consider that 
the delegates came to the Convention of 1787 with all 
this experience in their minds, each with the experi- 

21 



Evolution of the Constitution 

ence of his own colony and what he had heard of the 
experience of the other colonies, we begin to feel the 
truth of my main proposition, — that it is to the colonial 
period we must look for the immediate and most evi- 
dent sources of the National Constitution, and that the 
National Constitution when framed, in 1787, instead of 
being a contrast to the British Constitution and "struck 
off at a given time," was, even when judged as a purely 
American production, more than a hundred years old. 

The colonial sources of the Constitution are, first of 
all, the charters of government, which were framed not 
by the colonists themselves, but for them by the officers 
and ministers of the British Crown. It is easy enough 
to give the details of these. We have them all in Poore's 
admirable collection. They are very trying to read, 
because, like other documents of that time, each of 
them, though many pages long, is supposed to be one 
sentence from beginning to end. The clerks who 
draughted them were paid by the line, and their in- 
geniously involved language almost compels one to 
believe the assertion in Kid's ''Social Evolution" that 
the modern brain is inferior to the ancient But their 
immense verbosity conceals usually only a few very 
simple arrangements of government. . They were the 
foundation and beginning of our constitutional ex- 
perience. 

The second source of our experience is comprised in 
the constitutions, or frames as they were often called, 
which were made by the colonists themselves, with little 
or no dictation from the Crown. Some of these, as in 
Pennsylvania, rested on an authority given by the Crown 

22 



Confused Ideas as to its Origin 

to the people to make such a government as they could 
agree upon with their feudal proprietor. The first con- 
stitution of Connecticut, however, was made by the 
people of their own accord, without any outside influ- 
ence. These native constitutions might naturally be 
expected to differ very radically from the royal char- 
ters. But in matters of government and political forms 
there was very little difference, and both charters and 
constitutions seem to have been influenced by the same 
process of evolution. 

The third class of sources is the actual working and 
experience under these charters and constitutions, and 
under the governments which sprang up or were estab- 
lished by the Crown when a colony was without either 
charter or constitution. In this class we find the same 
evolution at work, and the practical experience under 
these governments reinforced the ideas developed by 
the written documents. 

The fourth class of sources comprises what I shall call 
the Revolutionary constitutions, or constitutions of the 
year 1776. I call them constitutions of 1776 because 
most of them were made in that year. They were all 
the result of a resolution of the Continental Congress 
passed in 1775, calling on each of the commonwealths, 
that were then still colonies, to abolish their charters, 
constitutions, or whatever sort of colonial government 
they had, and adopt new constitutions suited to the 
movement for independence. 

It was a resolution which at the time it was passed 
was considered of great importance. The people were 
wavering and hesitating to join the movement for inde- 

23 



Evolution of the Constitution 

pendence because they retained a lingering sentiment 
for the old order of things, the order under which they 
had lived and prospered for more than a hundred 
years, and which had given them pretty much all the 
experience they possessed of civil rights and govern- 
ment. This sentiment was generally believed to be 
wrapped up in the old charters and colonial constitu- 
tions, and if they could be broken the sentiment, it was 
said, would lose more than half its strength. 

It was certainly in many respects a wise resolution 
from the point of view of those who passed it. It has 
not been much noticed by writers on the sources of the 
Constitution, but it was the indirect source of more con- 
stitutional experience to the American people than any- 
thing else that can be named. It was obeyed by all 
the colonies except Connecticut and Rhode Island, 
whose charter governments were so liberal and gave so 
much essential independence that they were already 
substantially American. Connecticut continued to live 
under her old royal charter down to the year i8i8, and 
Rhode Island down to the year 1842. 

Under the inspiration of this resolution the majority 
of the commonwealths that eleven years afterward made 
the National Constitution rushed into an active experi- 
ence in constitution-making in the years 1776 and 1777 ; 
and they had an opportunity to test the constitutions 
thus made for ten years before they were called upon 
to frame the national document. 

Of the seventeen constitutions of 1776, eight were 
put in operation in the year 1776, three in 1777, and 
one in 1778. Massachusetts framed a constitution in 

24 



Confused Ideas as to Its Origin 

1778 which was rejected by her people, and another in 

1779 which was adopted March 2, 1780. New Hamp- 
shire, which had adopted a constitution in 1776, framed 
another in 1779 which was rejected, and another in 1784 
which was adopted. But even in the instances of Mas- 
sachusetts and New Hampshire, where the experience 
was prolonged and difficult, the constitutions had been 
in actual working for several years before the assembling 
of the National Convention of 1787. Vermont adopted 
a new constitution in 1786, the year before the assem- 
bling of the Convention, but it differed very slightly 
from her constitution of 1777, which was a copy of the 
Pennsylvania constitution of 1776. 

When we read all these constitutions of 1776 to- 
gether, in the light of our present knowledge, we see at 
once that they bear a most curious but immature re- 
semblance to the National Constitution. They are full 
of blunders, untried experiments, well-tried experiments, 
individual suggestions good and bad, old colonial tra- 
ditions and experience, strange remnants of aristocratic 
feeling, and all the natural characteristics of apprentices 
free for the first time to slash about at will with their 
master's tools and materials. And the most striking 
part of all is that when we read them in chronological 
order we find them developing step by step, and that 
those which took longest in making, like the constitution 
of Massachusetts, most nearly resemble the National 
Constitution. 



25 



CHAPTER II. 

THE COLONIAL CHARTERS AND CONSTITUTIONS. 
(1584 to 1732.) 

These old documents, when carefully studied in chron- 
ological order, show a steady development towards the 
forms of the National Constitution of 1787. The ear- 
liest of them was Sir Walter Raleigh's charter of 1584. 
This charter was the first step in English colonization in 
America, and, in a certain sense, the first American 
written constitution. It authorizes Sir Walter to dis- 
cover and settle heathen lands, without mentioning any 
particular continent or part of the world. But it was 
intended to encourage colonization in North America, 
and the five unsuccessful voyages made under it were 
all directed to that continent. 

Sir Walter and his heirs and assigns are to be the 
absolute owners of any lands they settle. He is to have 
" full power and authority to correct, punish, pardon, 
govern, and rule" in every way for six years the people 
who shall come to him or who shall live within two hun- 
dred leagues of him. His absolute power during those 
six years is given in the fullest manner, and the only 
exceptions to it are that his laws must conform *' as near 
as conveniently may be" to the laws of England, and 
if he robs any British subjects or the subjects of any 
prince at peace with Great Britain he must make resti- 

26 



Colonial Charters and Constitutions 

tution, under penalty of being declared out of the alle- 
giance and protection of his country and *' free for all 
princes and others to pursue with hostility." 

The first notion, therefore, which the EngHsh had of 
colonization and government in America was to give the 
absolute ownership of the land to a single individual, 
and let him govern it with absolute power for six years. 
The object was evidently by high reward to encourage 
some daring spirit to attempt the enterprise, and if he 
should be successful for six years a more orderly govern- 
ment of the colony could be provided. 

The more orderly government appears in the next 
document, known as the first charter of Virginia, granted 
in the year 1606. Sir Walter's efforts under his charter 
of 1584 had been wholly unsuccessful, and no settlement 
was established. But he gave the name Virginia to 
the whole country between the present States of Maine 
and Georgia, so that the next charter could at least be 
less vague than his had been. We find it, indeed, de- 
scribing with considerable exactness the country it 
granted as extending from latitude 34° N. to latitude 
45° N. This huge tract was to be divided between two 
colonies, the first of which was to settle somewhere be- 
tween Georgia and Pennsylvania and the second between 
Pennsylvania and Maine. 

The absolutism given to a single proprietor in Sir j 
Walter's charter is abandoned in this charter, and in 
place of it the same absolute power is divided between 
the king and a council. The government is to consist 
of a council of thirteen persons in London and a coun- 
cil of the same number in each of the two colonies. 

27 



Evolution of the Constitution 

Each council in the colonies was to govern its people 
according to such laws and instructions as the Crown 
should give, and these instructions were to provide for 
the appointing and removal of members of each council. 
But to each council was distinctly given the right to 
defend its colony by war on sea and land and establish 
a coin to pass current in trade. The London council 
was to have a general oversight of both the colonies, 
but its powers were of the vaguest kind. This charter 
was, however, a great advance on Sir Walter's. The 
law-making power was taken from the single pro- 
prietor and reserved to the king, and the administra- 
tion of the laws was given to a more or less numerous 
council. 

The power to make war and coin money was of a de- 
cidedly political nature, and shows a conscious shaping 
of the beginnings of a commonwealth. But the charter 
did not resemble any part of the British Constitution 
of that period. So far as it resembles anything it is 
more like the arrangement of the old English trading 
corporations. They were very apt to have the govern- 
ing power in the hands of a set of individuals, called a 
council or some such name. Afterwards there was a 
head, called president or governor, with a council to 
assist him, and in time the corporation government by 
president, board of directors, and stockholders was de- 
veloped as we have it to-day. 

Thus, the charter of the famous Grocers' Company, 
granted in 1429, places the whole power and govern- 
ment in three or four individuals called wardens. They 
are to govern ; and apparently, so far as the charter 

28 



Colonial Charters and Constitutions 

speaks, the members — or stockholders, as we should 
now call them — have no vote, and there is no head or 
president. The charter of the Merchant Adventurers, 
granted in 1505, shows a development by allowing the 
adventurers to meet and elect a governor or governors 
and also '* four-and-twenty assistants to the said gover- 
nor or governors." This term ''assistants" was after- 
wards, as we shall see, used in the Massachusetts charter 
of 1629, showing very clearly how our American forms 
of government originated in the trading charters.* 
The first Virginia charter is evidently framed on some 

* An interesting account of some of these old companies can 
now be found in Gawston and Keane's " Early Chartered Com- 
panies. ' * They were all, in their forms of government, very much 
like the early charters of the colonies in America. They were 
the beginning of the great English colonial system, and were for 
the encouragement of trade, exploration, and settlement in for- 
eign countries. They were necessary as the most convenient 
method of concentrating capital and energy, because private indi- 
viduals could not bear the great expense of contending with the 
pirates, who had to be fought with heavy armaments or bought off 
with expensive presents. These necessities of warfare first sug- 
gested the giving of governmental powers, which were rather 
novel functions for traders. The chronological order of the 
creation of these companies is significant : Merchant Adventurers, 
1505 ; Russia Company (for trade towards Russia), 1554; East- 
land Company (also for trade to Russia), 1579 ; Turkey Com- 
pany (for trade to the Mediterranean), 1581 ; Marocco Company, 
1585 ; First Guinea Company, 1588 ; East India Company, 1599 ; 
Guiana Company, 1609 ; Bermuda Company, 161 2 ; Second 
Guinea Company, 1631 ; China Company, 1635; Third Guinea 
Company, 1662 ; Canary Company, 1665 ; Hudson's Bay Com- 
pany, 1670 ; Fourth Guinea Company, 1672. 

29 



Evolution of the Constitution 

such model. Its draughtsmen naturally followed some 
of the forms to which they were accustomed in organ- 
izing* ordinary enterprises of business, and, as this one 
was to found a settlement in a new country, they threw 
in the political rights to coin money and to defend the 
settlement by waging war. They were soon to become 
convinced that a full-fledged corporation was the best 
form of government for establishing a colony. 

Three years after, in 1609, another charter was issued 
for Virginia, which professes to be an enlargement and 
improvement on the first one. It is less vague. Ex- 
perience had been acquired, and more details and more 
definite arrangements could be ventured upon. The 
striking part is that it creates an out-and-out corpora- 
tion modelled on the trading companies of the time, 
with the usual expressions giving a common seal, per- 
petual succession, and the right to hold real estate and 
to implead and be impleaded. 

A settlement had been effected in 1607, on the James 
River, within the territoiy of the first colony ; but nothing 
had been accomplished within the domain of the second 
colony. The second colony was therefore abandoned, 
and the first colony incorporated under the name of 
"The Treasurer and Company of Adventurers and 
Planters of the City of London for the First Colony in 
Virginia." A trading company was the natural form 
for the enterprise to take, for these rather reckless ad- 
venturers who were going to Virginia had no political 
project in their minds, and were not bent on carrying 
out any particular political theory. They were in search 
of gold or wealth in any form they could find it, and for 

30 



Colonial Charters and Constitutions 

that purpose the king was allowing them to enter on a 
tract of land in his wilderness domain. 

Their quest was a business one ; and so they were 
incorporated as a business company, with one or two 
rough provisions added to enable them to live together 
in the wilderness. They were a trading company which 
might also have to fight savages or pirates or the king's 
enemies, and might also have to control and punish un- 
ruly men among their own number. They were very 
much like the Hudson's Bay Company and the East 
India Company, whose charters show this same pecu- 
liarity of an ordinary trading charter changed slightly 
so as to enable its members to contend with wild nature 
and wild men. 

The first charter of Virginia named no officer as head 
of the undertaking. But now we have the treasurer as 
head, and the charter of incorporation goes on to pro- 
vide that there shall be two councils as in the former 
charter, one resident in England and the other resident 
in the colony. The council in England is to appoint a 
governor and other officers and make laws for the col- 
ony, and the council and treasurer are to be elected by 
the members of the company. The council, treasurer, 
and members of the company collectively are given a 
sort of general police power to correct, punish, and 
pardon offences, and the governor is given the right to 
make use of martial law when occasion requires it. 

Here we have some decided governmental powers 
worked out under the forms of a trading corporation. 
A definite governor or executive is provided for the first 
time ; and the pardoning power appears also for the first 

31 



Evolution of the Constitution 

time given to the collective legislative body of the whole 
company as well as to the governor and other officials, 
and not to the governor alone, as in later developments. 
The right of the company to elect the treasurer and 
council is also a considerable advance ; and the abso- 
lutism of the two previous charters has disappeared. 

In 1611-12 another charter added a further develop- 
ment, and gave to the treasurer and members of the 
company the right to hold general courts or meetings, 
and to make laws, appoint officers, arrange the manner 
of government, and elect persons to the council. Here 
we have the power of making laws and appointing offi- 
cers taken away from the council and given to the whole 
body of the members of the company, — a definite move 
towards more popular government within the forms of 
a trading corporation. The council is relegated to the 
position of a sort of executive body to manage the af- 
fairs of the company from day to day, and we shall soon 
see it become the governor's council. There is also a 
provision allowing the company to admit as members 
aliens, or persons not liege subjects of the British Crown, 
which is evidently a move towards the right possessed 
by all political governments to naturalize foreigners. 

Thus far the American form of government as devel- 
oped out of a corporation seems to be a council and 
head of the company called treasurer, a governor, and 
the members of the company meeting in a body to leg- 
islate. But under the condition of affairs in Virginia 
the governor became more and more of an important 
person, and the colony was soon ruled by governors 
with a strong and even violent hand, — a method which 

32 



Colonial Charters and Constitutions 

was doubtless well suited to the restless and unruly 
spirits of the adventurers. One of the governors con- 
trolled them by martial law, which the charter allowed 
to be used in case of necessity. 

Meantime there was great contention in England 
among the members of the company as to what was the 
proper form of government for the colony. In 1619, 
under the powers they had to make laws, they adopted 
a new political organization, evidently the result of ex- 
perience and thought. The governor was to have a 
council to assist him as the executive of the colony, and 
the members of the company in the colony were to 
elect representatives to a little legislative assembly 
called the ''house of burgesses." Thus the right of all 
the members to meet and enact laws, having become 
obviously inconvenient, was transferred to delegates. 

Here we have the germ of all our American govern- 
ments and of the National Constitution. It is simply a 
slight extension of the forms of the old trading corpo- 
ration to suit the conditions in Virginia. The Massa- 
chusetts charter' of 1629, which was modelled on the 
Virginia charters and gave the law-making power to the 
whole body of the freemen or members of the company, 
was developed by custom into the same form that pre- 
vailed in Virginia. The members of the company found 
it inconvenient to meet all together, and they trans- 
ferred their law-making power to a smaller body of 
delegates. 

This simple type of governor and council for the ex- 
ecutive and a single house of legislature was not copied f 
from the British form of government, but was developed 
3 33 



Evolution of the Constitution 

by circumstances and necessities from the trading com- 
pany. It remained the fundamental form of govern- 
ment in the colonies for more than a hundred years, 
constantly putting forth branches and growths which 
resembled nothing in England, but resembled very 
strongly what afterwards became parts of our National 
Constitution. We shall follow the details of all these 
growths and gradually see the governor's council ex- 
pand into the Senate of the United States. 

The Virginia charters were dissolved in 1623, and 
from that time until the Revolution the colony had no 
charter or written constitution. The form of govern- 
ment, however, of governor's council and single house 
of legislature survived, and showed the same kind of 
development that we shall find in the other colonies. 
The governor acquired the veto power on legislation, 
the right to pardon criminals, the right to appoint to 
office, and the command of the militia. His council 
showed a decided tendency to develop into a second 
or upper house of the legislature. In 1680 they ceased 
to sit with the burgesses, and, as time went on, acquired 
more and more legislative functions. 

There was the same confusion of the departments of 
government as we shall notice in the other colonies. 
The governor was not only an executive officer, but a 
judicial officer as well, and acted as chancellor and 
chief justice. He also had the power, which we shall 
find in some other colonies, of adjourning the legisla- 
ture at his pleasure. The constitution of Virginia be- 
came one of custom and laws passed from time to time, 
the result of what had been done under the charters, of 

34 



Colonial Charters and Constitutions 

what had been done without them, of what had been 
done by the Crown and the royal governors, and of 
what the popular party by resistance could win for itself. 

"The Agreement between the Settlers at New Ply- 
mouth" might be our next document, as it was made in 
1620. But, although much sentimental praise has been 
lavished upon it by some writers, it is not a charter, nor, 
properly, a constitution, and still less a frame of gov- 
ernment. It was drawn up on the *' Mayflower" by the 
Pilgrim Fathers before they landed on the coast of Massa- 
chusetts, andjs^gnly^about a. dozea. or fifteen lines of 
print to the effect that its signers solemnly^^and mutually 
combine themselves into a body politic^to be governed 
by laws afterwards to be prepared. There are no de- 
tails, there is no frame of government of any sort, nor 
is an officer of any kind named. It is merely such a 
simple agreement as any ship-load of people of any 
race about to land on a wild coast might prepare. It 
is an agreement to make a government in the future, 
rather than the government itself 

We shall pass it, therefore, and take up the charter of 
New England, which was granted in the same year, — 
1620. This document reveals a curious reaction ; in fact, 
a return to the absolutism of the Virginia charter of 1606. 
A council of forty persons is created, which is to be a 
corporation and to continue its existence by elections 
among its own members. It is to elect one of its mem- 
bers to be president and preside over its meetings, and 
has in every respect the fullest power to appoint the 
governor and all other officers and to make all laws 
which shall be thought necessary. 

35 



Evolution of the Constitution 

The reason for this return to absolutism may have 
been that New England was at that time unsettled and 
all attempts to establish a permanent colony there had 
failed. The climate was cold and the countr}-^ barren 
and unattractive. A council with full power might be 
able to encourage the beginnings of settlements, for they 
could work in their own way without interference. 

But still, even amidst this absolutism, there are signs 
of advance. The corporation is called a *' body poli- 
ticque and corporate," showing a consciousness that 
these corporations were becoming something more than 
mere trading companies. A new kind of corporation 
was being developed, which was neither a private nor a 
municipal corporation, but a political corporation. The 
grant of judicial power is also more liberal than any that 
has appeared hitherto. Instead of the cautious per- 
mission of the Virginia charter of 1611-12, which al- 
lowed the council merely to punish crimes, we find the 
New England council given full judicial authority in 
civil as well as in criminal cases. 

When they came to making laws and a government 
for New England under their absolute authority the 
council were evidently influenced by the advance free 
government had already made in Virginia. Two years 
after they received their charter they published a pam- 
phlet entitled "A Brief Relation of the Discover)- and 
Plantation of New England," which was intended to en- 
courage settlers and described the sort of government 
the council had decided to adopt The government 
was modelled on the Virginia type, and consisted of a 
governor and council and a general assembly of depu- 

36 



Colonial Charters and Constitutions 

ties elected by the counties, baronies, and hundreds into 
which the county was divided. A slight tendency to 
advance is shown in the provision that there should be a 
treasurer for finance, a marshal for arms and war, a mas- 
ter of ordnance for ammunition and artillery, and an 
admiral for all marine affairs. The president and coun- 
cil in England were to order the assembling of the gen- 
eral assembly and " give life to the laws," which proba- 
bly meant a veto power. 

The next charter in order is that of Massachusetts, 
granted in 1629. It also has the characteristics of a 
corporation, and, like the last one, calls the company a 
body ''corporate and politique." In the sort of gov- 
ernment created by it the Virginia charter of 1611-12 
is followed quite closely, with a slight development 
There were to be a governor, a deputy governor, and 
eighteen assistants, or governor's council, all — including 
the governor and deputy — to be elected by the freemen 
or members of the company, who, together with these 
officers whom they elected, were to make the laws. 
This is nothing more than an ordinary trading-company 
government, in many respects like those of modern 
times. The freemen — that is to say, those that were 
made free of the company, as the expression was in 
those times — were the members or stockholders, as 
we should now call them. They elected the assistants, 
who corresponded to the modern board of directors or 
trustees, and the governor corresponded to the modern 
president. 

Very quickly, however, the freemen, finding it incon- 
venient to meet in a body to transact the company's 



v 



Evolution of the Constitution 

business, elected delegates to represent them, and thus, 
as in Virginia, a legislature was formed, — the outgrowth 
simply of an inconvenience in administering the powers 
of a trading company. Again, we have, as in Virginia, 
the typical colonial government, — governor, governor's 
council, and a single house of legislature. 

The charter had given the power of making laws to 
the governor, assistants, and all the freemen assembled 
together. This was a confusion of executive and legis- 
lative functions, natural and proper enough perhaps in 
a trading company. When the legislature was devel- 
oped out of the inconvenience of the freemen all meet- 
ing together, the same confusion continued. The legis- 
lature, the assistants, and the governor sat together to 
make laws ; and after a time the assistants sat as a sep^ 
arate body. 

This mingling of the distinct departments of govern- 
ment was common in ail the colonies, and was the natu- 
ral result of a development from trading companies. It 
continued all through the colonial period, and at times 
grew worse, for the judicial function was often added to 
the executive and sometimes to the legislative. Its un- 
soundness and inconvenience were at last realized, and 
in the constitutions of 1776 efforts were made to correct 
it. Several of those constitutions announce with great 
emphasis the principle that the legislative, judicial, and 
executive departments must never be confused and 
never exercised by the same persons. In the National 
Constitution no such principle is stated, because it had 
become fixed and settled, and it was necessary only to 
act upon it. The national document certainly made all 

38 



Colonial Charters and Constitutions 

those departments entirely distinct, and the evolution on 
this point was complete. 

In the Massachusetts charter, as in the Virginia char- 
ter, there is no copying of the forms of the British gov- 
ernment. There is no double legislature, no House 
of Lords and House of Commons to act as checks on 
each other. Some would say that the assistants, or gov- 
ernor's council, were like the English Privy Council of 
the king. But the king's Privy Council did not sit with 
the English House of Commons, and was not elected 
by the people, as the assistants were. The assistants 
were an executive, legislative, and judicial body, acting 
as magistrates, laying down rules and regulations in the 
absence of a meeting of the freemen or their delegates, 
and giving advice to the governor, — performing, in 
short, veiy much the same functions that a corporation 
board of directors would now perform under the same 
circumstances. 

The persons who influenced the draughting of the 
Massachusetts charter were, first of all, the Puritans, who 
wanted it, and, secondly, the officers of the Crown, 
whose duty was merely to see that the rights of the 
British government were protected. The Crown offi- 
cers had no wish to create a political government in the 
American wilderness, and least of all to create it for 
such persons as the Puritans, who had already made 
themselves so troublesome by political agitation. It 
would be better to limit such reckless and fanatical men 
within the form of a trading charter rather than give them 
a government which in either model or dignity could 
be compared to that of Great Britain. The Puritans, 

39 



Evolution of the Constitution 

on the other hand, would have been the last persons to 
want a government on such a model ; for they were 
hostile to the British government, and had little or no 
sympathy for its monarchical and aristocratic forms. 

They succeeded admirably in getting all they wanted 
within the forms of a corporation. There was no pro- 
vision, as in subsequent charters, requiring their laws to 
be submitted to the Crown for approval. They could 
elect their governor and all other officers. In fact, the 
charter proved to be so liberal that the Puritans set up 
under it what was in effect almost an independent state. 

We must next dispose of some charters which were 
of a peculiar character and show but little development. 
The first is that of Maryland, granted in 1632. It was 
a proprietary grant, or conveyance of a great tract of 
land, making Lord Baltimore the feudal lord and owner ; 
and in these proprietary grants the Crown usually gave 
its favorite the privilege of creating any sort of govern- 
ment he and his colonists could agree upon. This was 
a considerable advance on the absolutism of the pro- 
prietary grant to Sir Walter Raleigh, who could govern 
without consulting his colonists at all. 

Lord Baltimore was allowed to make laws "with the 
advice and consent" of the freemen, or a majority of 
them or their delegates. He was also to have the privi- 
lege of appointing judges and various other officers, and 
of pardoning criminals. These powers of appointing 
and pardoning were afterwards a common attribute of 
colonial governors, and show a slight development. 
There was also some advancement shown in the power 
given Lord Baltimore to establish courts of law for both 

40 



Colonial Charters and Constitutions 

criminal and civil cases. The previous charters had 
given only criminal jurisdiction. 

There was a curious provision allowing the proprietor 
to make laws without the consent of the freemen in any 
sudden emergency when they could not be called to- 
gether in time. This privilege, which was also given to 
William Penn in the Pennsylvania charter, and to the 
proprietors of the Carolina charters of 1663 and 1665, 
was seldom if ever exercised. It was so close to des- 
potism that the mere mention of it would arouse the 
indignation of the people. Penn threatened to use it, 
or, rather, reminded the people that he could use it, and 
seriously injured his popularity. 

We may also at this point dismiss the Pennsylvania 
charter of 168 1, which, so far as a form of government 
was concerned, was the same as Maryland's. The two 
proprietary charters of the Carolinas — one in 1663 and 
the other in 1665 — and the grant of Maine in 1639 
may be dismissed in the same way. They gave the pro- 
prietor the same rights as the Maryland charter. The 
two proprietary grants of New Hampshire — one in 
1629 and the other in 1635 — were very bald and crude, 
simply giving John Mason the right to make a govern- 
ment, and if the people thought it was wrong they could 
appeal to the council of the New England Company that 
made the grant. The grants to the Duke of York, one 
in 1664 and the other in 1674, were mere gifts of absolute 
power, like Sir Walter Raleigh's charter of 1584. 

The fundamental orders of Connecticut of 1638 come 
next in order after the Maryland charter of 1632. These 
orders, as they are called, form a constitution which is 

41 



Evolution of the Constitution 

exceedingly interesting, because it is the first constitu- 
tion made upon American soil without any interference 
or influence from the British Crown. The Connecticut 
people who made it had migrated from the Massachu- 
setts colony and settled themselves about the site of the 
present town of Hartford. They were outside of the 
jurisdiction of Massachusetts. In fact, they were not 
within the limits of any colony, and had no title except 
a title of mere occupancy to the land on which they 
settled. They drew up the fundamental orders by mu- 
tual agreement and understanding among themselves, 
and we should naturally expect it to be a document 
somewhat resembling the Massachusetts government and 
at the same time without any of the trammels of corpo- 
ration forms or Crown influence. 

It is curiously worded, and begins wrong end fore- 
most. The duties of the legislature are described be- 
fore we are told that there is to be a legislature at all. 
But as we read on it seems that the people of the towns 
were to send deputies to an assembly which was called 
the general court. This general court had two stated 
meetings a year, — one in April, called the court of elec- 
tion, at which a governor and other public officers were 
to be chosen, and another in September, for passing laws 
and transacting general business. 

The magistrates were apparently a governor's coun- 
cil, like the assistants in Massachusetts. In fact, the 
Massachusetts assistants were often spoken of as magis- 
trates. The governor was to summon the general court 
a month before the time of the meeting, and, ** if the 
governor and the greater part of the magistrates see 

42 



Colonial Charters and Constitutions 

cause upon any special occasion to call a general court, 
they may give order to the secretary so to do within 
fourteen days' warning." This power to call the legis- 
lature together in an emergency was afterwards given to 
the president in the National Constitution. 

When the general court met it was to be composed 
of the deputies and also the governor and at least four 
of the magistrates. There were to be six magistrates 
elected by the whole body of the freemen, and they were 
given judicial power. But apparently the governor was 
to be elected by the general court. 

That this instrument was in the main a copy of the 
government of Massachusetts as it had developed under 
the charter is quite evident. We have the governor and 
his council of assistants or magistrates, a house of depu- 
ties elected by the people, and governor, magistrates, 
and deputies all sit together as a single-branch legisla- 
ture. The only difference is that the governor seems to 
be elected by the general court instead of by the people, 
and this is easily accounted for when we find that for a 
short time in Massachusetts the right to elect the gov- 
ernor was surrendered by the freemen. 

Even when left to themselves, therefore, and uninflu- 
enced by the Crown, the colonists seem to have followed 
the forms already in existence as developed from the 
trading-company charters. 

Only one or two other points in the Connecticut fun- 
damentals deserve mention. The magistrates are dis- 
tinctly given the power to sit as a court or as separate 
courts of law. They were to be guided by the laws as 
established from time to time, and, when there were no 

43 



Evolution of the Constitution 

laws, by the word of God, and this was a famihar custom 
in Massachusetts. .The Connecticut governor was to 
preside over the general court, and could not adjourn it 
without its consent But the most striking advance is a 
clause giving the general court the power of impeaching 
public officers, and this is the first appearance of the 
power of impeachment. 
C^ In 1643 the inhabitants of Rhode Island were given 
a patent which allowed them to rule themselves by such 
form of government as the majority should find suitable 
to their condition. As this patent contains no special 
form of government and is merely a license to make any 
government that shall be suitable to the majority, it need 
not be discussed further than to say that it was an ob- 
vious step towards referring all political power to the 
people. The government established under it was mod- 
elled on those that already existed in Massachusetts and 
Virginia, and consisted of a governor, governor's coun- 
cil, and assembly elected by the people. 

Our next charter belongs to Connecticut, and may be 
considered at the same time with the charter of Rhode 
Island, for the two were only a year apart, being granted 
respectively in 1662 and 1663, and are almost precisely 
alike. They are also like the Massachusetts charter, and 
a slight advance upon it. 

The Connecticut people had come from Massachu- 
I setts, and when they sent Winthrop to England as their 
agent to obtain a charter he naturally followed the Mas- 
sachusetts model, and the Crown officers seem to have 
had no objection. It was so liberal in its terms that 
it always has been somewhat of a wonder how it was 

44 



Colonial Charters and Constitutions 

obtained, and stories have been told of the influence 
exercised by Winthrop with a ring which his father had 
received from Charles I. At any rate, Charles 11. and 
his ministers seem to have been in an easy mood, and 
not so stringent in their ideas of colonial rule as they 
afterwards became. The charter suited the Connecticut 
people so well that they refused to abolish or alter it in 
the Revolution, and lived under it until the year 1818. 
It may therefore be regarded as very American and in 
many respects a native product. 

It is very general in its provisions for government, is 
still in the corporation form, and calls the company it 
creates a body ''corporate and politick." The freemen 
were to elect the governor, deputy governor, and twelve 
assistants ; and the assistants were, of course, intended 
to be a governor's council. So far it is just like the 
charter of Massachusetts. 

The Massachusetts charter, it will be remembered, 
provided that all the members of the company were to 
meet together in a body to legislate, and this, being 
found inconvenient, was changed by custom and a 
house of delegates created. The Connecticut charter, 
however, creates this house of delegates at once. In 
other words, it copied the Massachusetts form of gov- 
ernment as it had developed up to the year 1662, and 
so far was an advance on the forms of the old trading 
corporations. It also advanced by giving the name 
general assembly to the governor, assistants, and house 
of deputies, when they all met together to enact laws, — 
a name which became very common, and is still retained 
in some of our States. 

45 



Evolution of the Constitution 

The general assembly was given the power to punish 
crimes and offences, and also the power to pardon. In 
the colonial governments the pardoning power was some- 
times given to the executive department and sometimes 
to the legislative, until, as we near the National Consti- 
tution, it becomes a fixed prerogative of the executive. 

Besides the general power to make laws, this general 
assembly was distinctly given the right to create and 
organize general courts of justice, both civil and crimi- 
nal. This right had been given for the first time to 
Lord Baltimore in the Maryland charter of 1632. One 
might suppose that it would be implied in the power 
to make laws. But evidently there was a doubt on this 
subject, and the existence of this doubt shows how gov- 
ernment was developing out of the forms of the trading 
corporations. 

To create courts which shall enforce rules of conduct 
by seizing the property of citizens in some cases, and 
seizing their persons in other cases and condemning 
them to imprisonment or death, is a veiy important 
power, and one of high prerogative. It is not, and 
never has been, the usual incident of a business corpo- 
ration. It might possibly be implied as part of the 
necessary powers of a corporation which was to under- 
take the unusual task of settling and planting a wilder- 
ness. But evidently it was thought better, as these 
colonial planting and trading corporations became more 
and more like real governments, to give somebody in 
them the distinct and express power of creating courts 
of justice. The failure to make this matter clear in the 
Pennsylvania constitution of 1701 afterwards led to a 

46 



Colonial Charters and Constitutions 

very bitter dispute whether the governor or the assem- 
bly had the right to institute courts. 

As the Rhode Island charter was granted the year 
after that of Connecticut and contains the same pro- 
visions of government, it is not necessary to enlarge on 
it in detail. It was obtained by a Baptist minister, Rev. 
John Clarke, who, like Winthrop of Connecticut, went 
over to England as agent. He naturally followed the 
easiest course, and obtained a charter like the one just 
granted to Connecticut, which at that time, in New 
England, was generally believed to be the best instru- 
ment of government. 

Thus we have in the year 1663 three specimens of 
the most advanced form of American government. It 
is allowable to call them American, and not English, 
because the Massachusetts government was to a large 
extent a growth on the soil, and had added to itself 
the house of delegates, which was not provided for in 
the charter as drawn in England. The other two had 
copied this development and added to it an advance of 
their own in distinctly saying that the general assem- 
bly should have the power to create courts of justice. 
Moreover, it is to be observed that, as these two were 
obtained by agents who went from the colonies to Eng- 
land, they may be said to have been draughted by 
American influence, the result of American experi- 
ence, and they were not the mere theorizing of Crown 
officers or of persons who had never lived in America. 

It should be noticed that in none of these govern- 
ments was the legislature composed of an upper and a 
lower house acting as a check on each other. The 

47 



Evolution of the Constitution 

legislature was to consist principally of representatives 
elected by the people. The governor's assistants, or 
council, were to sit with them, not as a separate body 
to act as a check, but as a part of them. There were 
as yet no veto power and no pardoning power in the 
governor, and no detailed description of his relation to 
the legislature or of the legislature's relation to him. 
There was not the slightest resemblance to the British 
government of King, Commons, and House of Lords. 
All I see, and all I think any one can see, is an English 
business corporation altered a little to suit unusual cir- 
cumstances, — the circumstances of planting and trade 
instead of trade alone, — and by experience in those cir- 
cumstances somewhat developed and enlarged in the 
direction of a true political government. 

Two or three years after these charters of Connecti- 
cut and Rhode Island another frame of government was 
prepared for the colonies, and this was the " Concessions 
and Agreements of the Proprietors of East Jersey," of 
1665. This instrument was not a royal charter, and in 
the making of it the Crown officers had no influence. It 
was prepared by the proprietors of the province accord- 
ing to their own ideas, and it is interesting to observe 
that it accepts the form of government as developed in 
Virginia and New England under the royal charters, 
and adds some developments and improvements. 

There is to be a governor, with a council of from six 
to twelve, *'with whose advice and consent" he is to 
govern ; a house of deputies, elected by the people ; and 
governor, council, and deputies are to sit together in 
making laws, and be called the general assembly ; and 

48 



Colonial Charters and Constitutions 

the assembly is to have the right to establish courts of 
law. So far the New England type is strictly followed. 
Then comes an advance, and some details are added, 
showing a conscious framing of more complete govern- 
ment. 

The assembly is told that it may appoint its own time 
of meeting and adjourn when it pleases. This same 
power of adjourning at pleasure had been given to the 
assembly by the Fundamental Orders of Connecticut in 
1638, but it was so much of an advance that it was not 
followed in the Connecticut charter of 1662 or in the 
Rhode Island charter of 1663. Even in these Conces^ 
sions of East Jersey of 1665 it was found to be ahead 
of time, and had to be set back. 

Other increased details of power follow. The as- 
sembly was to decide what should be its quorum, levy 
taxes, lay out ports and towns, divide the country into 
counties and districts, naturalize foreigners, establish forts 
and arm them, and organize the militia. The governor 
and his council were to appoint the judges of the courts 
and see that they and all other officers did their duty ; 
also to appoint military officers, to command the militia, 
and to reprieve criminals until the case could be heard by 
the proprietors, with whom rested the pardoning power. 

Here we have a large and detailed development of 
both legislative and executive authority, taking Ameri- 
can government a long way out of the old forms of 
trading corporations ; and we also find that the pro- 
prietors retained the privilege of rejecting all bills passed 
by the general assembly, which was a veto power like 
that of Lord Baltimore in the Maryland charter of 1632, 

4 49 



Evolution of the Constitution 

This somewhat excessive development was the result 
of the constitution being framed not by the people who 
were to live under it or by regularly constituted officers 
of the Crown, but by a few men of good education and 
advanced ideas, who were free to theorize a little and 
carry out favorite principles. Whenever men of this sort 
draughted an American constitution we usually find an 
abnormal development, in some cases so abnormal as to 
produce reaction. 

In the present instance of the constitution of East 
Jersey an amendment was made in 1672 taking away 
from the assembly the right to control its own adjourn- 
ments and giving that control to the governor and his 
council. But two years afterwards, in 1674, the develop- 
ment went on, and we have an instance of an attempt to 
create a double-branch legislature. The governor and 
council were no longer to sit with and vote with the 
deputies, but to sit by themselves and have a veto on 
everything passed by the deputies. 

This constitution of East Jersey and the constitution 
of West Jersey, to be noticed hereafter, were abrogated 
in 1 702, when both provinces were surrendered to the 
Crown. After that the Jerseys were ruled as one colony 
by governors appointed by the king, without charter or 
constitution, the people always protesting that they still 
retained all their rights under the old proprietaiy Con- 
cessions. 

About four years after the " Concessions and Agree- 
ments of the Proprietors of East Jersey" another charter 
appears, which seems to have been almost exclusively 
the work of one man. This was the famous constitu- 

50 



Colonial Charters and Constitutions 

lion of John Locke, in 1669. It was prepared for the 
government of the CaroHnas and only partially put in 
operation. It was never successful, and was abrogated 
in 1693. 

It was not made by the people themselves or by prac- 
tical men who were politicians or lawyers, but by a phi- 
losopher who was idealizing. Nevertheless, it is valuable 
as showing development, for Locke, although a philos- 
opher, was also a human being, influenced by the opinion 
of his time, and he had read all the charters and con- 
stitutions of his day and knew the problems to be solved. 
In fact, he foresaw one of the problems of the future in 
a very remarkable way. He emancipated himself com- 
pletely from the forms of a trading corporation and 
attempted to create an out-and-out American political 
government. 

He began in the most scientific manner by dividing 
the province into counties, and the counties into seigni- 
ories, baronies, and precincts, and the precincts into 
colonies. The head, or governor, was to be called the 
palatine. There were to be lords proprietors, land- 
graves, and caziques ; also admirals, chamberlains, chan- 
cellors, high stewards, chief justices, and treasurers. No 
lawyers were to be allowed, nor could any one plead for 
a fee. Not satisfied with making the constitution and 
laws secure by the absence of lawyers, he provided that 
there should be no comments or expositions of any kind 
on the constitution or statutes, so that they might always 
remain clear and easy to understand. The constitution 
was never to be altered in any way, and, that it might 
not be gradually and imperceptibly altered by laws, all 

51 



Evolution of the Constitution 

laws were to become inoperative one hundred years after 
their passage. 

But in the midst of all these extraordinary provisions 
we begin to see some light when we find him providing 
for a registry of deeds and mortgages in each precinct. 
A similar registry had been provided for in the Con- 
cessions of East Jersey. He also provided for the col- 
lection of vital statistics, and a little closer attention 
reveals a double-branch legislature. His grand council 
was a separate legislative body, whose function was to 
propose measures for the lower house, or parliament, as 
it was called, and nothing could be proposed in this par- 
liament unless it had passed the grand council. This 
was the first appearance in American written constitu- 
tions of a double-branch legislature, and it was followed 
in 1774 in the amendment to the Concessions of East 
Jersey. 

The plan of giving the upper house the sole power of 
originating legislation was some years afterwards intro- 
duced into Pennsylvania by William Penn. But it was 
very unpopular, subversive of the ordinary political rights 
of Englishmen, and finally defeated by the people. 

Besides the attempt to form a double legislature, this 
constitution of Locke gives an elaborate sort of veto on 
legislation to the palatine and his court and some of the 
lords proprietors. Leaving out what was the result of 
Locke's individual and peculiar views, this constitution 
adds something to the development reached in the 
document last considered of East Jersey, while in the 
main it follows it quite closely. 

But Locke foresaw in a curious way that the great 

52 



Colonial Charters and Constitutions 

difficulty with these written constitutions would be in 
devising some body or department which should prevent 
infringements and prevent the passage of unconstitu- 
tional laws. This problem was afterwards attempted 
to be solved in some of the constitutions of 1776 by 
creating a board of censors, whose duty it should be 
to prevent infringements and expose them when com- 
mitted. Since then the Supreme Court of the United 
States and the courts of last resort in each State have 
become the guardians of constitutional integrity. But 
the only method Locke could think of besides limiting 
the life of all laws to a hundred years was to intervene 
a delay and reconsideration between the passage of a 
suspected law by the parliament and its approval by the 
palatine. His provision on this point is so curious that 
it is worth quoting in full. The suspected act could be 
protested for unconstitutionality : 

• ' And in such case, after full and free debate, the several es- 
tates shall retire into four separate chambers, — the palatine and 
proprietors into one, the landgraves into another, the caziques 
into another, and those chosen by the precincts into a fourth, — 
and if the major part of any of the four estates shall vote that the 
law is not agreeable to this establishment and these fundamental 
constitutions of the government, then it shall pass no farther, but 
be as if it had never been proposed." 

Next after Locke's attempt at constitution-making 
comes the ''Concessions and Agreements of the Pro- 
prietors of West Jersey," which appeared in 1677. It 
begins by appointing commissioners who are to gov- 
ern the colony by instructions received from the pro- 
prietors until other commissioners are elected by the 

53 



Evolution of the Constitution 

inhabitants, and these commissioners elected by the in- 
habitants are to govern until a general assembly is 
elected. Then comes "The Charter or Fundamental 
Laws Agreed Upon." 

It is quite likely that the draughtsmen of these fun- 
damental laws had been reading Locke's constitution, 
for they begin by trying to invent a method of prevent- 
ing unconstitutional legislation. The constitution must 
not be violated by the assembly, they say, and any as- 
semblyman moving anything unconstitutional shall, on 
proof of seven eye-witnesses, be proceeded against as a 
traitor. Then follow a few provisions about trial by 
jury which at the time of the Revolution would have 
been included under the head of what was usually called 
a ** Bill of Rights." These bills of rights were generally 
affixed, in some form or other, to all the constitutions of 
1776, and this constitution of West Jersey shows the be- 
ginning of them in American governmental documents. 

The remaining provisions for West Jersey are, how- 
ever, very meagre. A registry of deeds is provided, as 
in Locke's constitution and in the Concessions of East 
Jersey. The assembly may fix its own quorum, adjourn 
as it pleases, erect courts of law, appoint judges, and lay 
out towns and counties. No governor is provided, but 
the assembly Is to elect ten commissioners, who are to be 
the executive. Certainly this was a very crude instru- 
ment, — of slight advance, and in some respects a re- 
action. The same fate befell It as befell the Conces- 
sions of East Jersey. It was surrendered and abrogated 
when the two provinces became one colony under direct 
royal government in 1702. 

54 



Colonial Charters and Constitutions 

New Hampshire's charter comes next, and this also 
shows only a slight development. It was, however, not 
properly a charter, but a mere royal commission granted 
in 1680 for the purpose of governing the province during 
the king's pleasure. At first New Hampshire had been 
a proprietary colony under John Mason ; but the pro- 
prietorship was not successful, and the settlers sought 
the protection of Massachusetts in 1641, and remained 
under her tutelage until 1675. 

The royal commission of 1680, though not a charter, 
is professedly a method of government, and shows in a 
rough way some of the general ideas that were in all 
the colonial governments. The president and his coun- 
cil were to be the executive of the province, control the 
militia, encourage good living and virtue, and also act 
as a court of justice, — a very gross confusion of the de- 
partments. There was to be a house of representatives 
to make the laws, and the president and council had an 
absolute veto power. 

Here it is evident we have the Massachusetts, Con- 
necticut, and Rhode Island charters over again with a 
slight development. The governor or president, with 
his council, is given the veto power, which had not be- 
fore been given in New England. 

The president and council are also given the power 
of commanding the militia. This power was not dis- 
tinctly given in the Massachusetts charter, or in either 
of the other two New England charters which were 
modelled on it, though, like the power to create courts 
of law, it might doubtless have been implied. But now 
we find it, as in the East Jersey Concession, distinctly 

55 



Evolution of the Constitution 

given to a definite department as the power to create 
courts was, as aheady shown, distinctly given. The 
addition of these two powers, which also appear in a 
crude way in the Jersey constitutions, shows a gradual 
working out of the details of a regular government. In 
subsequent frames of government we find them given 
with more or less detail all the way down to the National 
Constitution, where they appear in their most mature 
form. 

But the most interesting part of the New Hampshire 
commission is a clause directing the president to recom- 
mend to the general assembly such acts, laws, and ordi- 
nances as may tend to establish the people in obedience 
to the king's authority, preserve due peace and good 
government, protect them from their enemies, and 
enable them to raise taxes for the support of govern- 
ment. This was certainly something in the nature of a 
president's message, an idea afterwards worked out in 
the New York constitution of 1777 and adopted in the 
National Constitution. 

Our next document, the Pennsylvania frame of 
1682-83, is more mature than the commission for 
New Hampshire. It preserves the forms as developed 
out of the trading charters of Virginia and New Eng- 
land, and adds to them some striking developments. 
It is especially worthy of notice because it is the second 
advanced frame of government that was made exclusively 
on American soil. The Connecticut Fundamental Orders 
of 1638 is the first document of this sort, as already 
shown, but it merely copied the Massachusetts form, 
with a slight advance upon it. The Pennsylvania frame, 

56 



Colonial Charters and Constitutions 

as being more fully developed, is more significant and 
interesting. It was made by William Penn and his 
colonists under that clause in the grant to Penn which 
allowed him to make laws '' by and with the advice, 
assent, and approbation of the freemen." The clause 
did not tell him that he and the freemen might make a 
constitution ; it simply said laws ; and it shows the in- 
stincts of the race that Penn and his people inferred 
that under this they must first of all make an organic 
law, a fundamental order, or, more briefly, a constitu- 
tion. 

There was no royal influence affecting the making of 
this constitution. No officer of the Crown was present, 
or had a right to be present. Both Penn and his people 
were standing on the soil of Pennsylvania, and could do 
as they pleased. That, under the circumstances, they 
framed a government which followed the line of develop- 
ment in other colonies, and advanced on it a little, shows 
that the royal charters heretofore discussed were not 
entirely the result of mere Crown influence, but were 
largely what the colonists themselves desired and had 
suggested. 

The constitution begins with a preamble on the nature 
of government which has been generally supposed to 
contain Penn's own ideas on the subject. Government, 
he said, was of divine origin and a part of religion. 
There were many theories of it current ; but the actual 
practice was a different and also a very difficult matter, 
because the government must be suited to its people and 
locality. This was certainly very Saxon ; and then he 
adds a sentence which has been often quoted : 

57 



Evolution of the Constitution 

" Any government is free to the people under it (whatever be 
the frame) where the laws rule and the people are a party to those 
laws, and more than this is tyranny, oligarchy, or confusion." 

Governments, he went on, depended on men rather 
than men on governments ; and an ill-framed govern- 
ment in good hands might be quite successful. After 
all, the great end was ** to support power in reverence 
with the people, and to secure the people from the abuse 
of power." 

All this was much better theorizing than anything 
Locke had said in his constitution. Penn was one of 
the most accomplished men of his time, and, though 
not a metaphysician, was as competent as Locke to 
draw up an ideal political dream. But he started on 
the established forms, and, while he made some impor- 
tant developments, kept well within legitimate lines and 
swerved comparatively little from the normal. 

As we read along in his constitution we find a gov- 
ernor, a governor's council, and an assembly of the 
people, just cLS in the constitutions developed in New 
England and East Jersey. The people were to elect 
the council, as in the New England charters, and it is 
called the provincial council. 

The variations on the New England type were, first 
of all, that the council was to be very large and contain 
seventy-two members. In the other colonies the as- 
sistants or council were seldom more than ten or twenty 
in number. This enlargement of the council shows at 
once a tendency to develop it into an upper house of 
the legislature, and this is confirmed when we find that 
the council is to originate all legislation, and that the 

58 



Colonial Charters and Constitutions 

assembly is merely to accept or reject the proposals of 
the council. In this idea of developing the council into 
an upper legislative house of such importance that the 
lower house would be completely dwarfed and insig- 
nificant, Penn seems to have been influenced by Locke's 
constitution. 

It may be added that this sudden attempt to develop 
a second house and develop it excessively was very much 
in advance of the time. Not only was Penn's whole 
arrangement in this respect changed and the legislative 
department put back in its normal colonial state, but 
Pennsylvania continued to have a single-branch legisla- 
ture until long after the Revolution. 

In developing the council so excessively Penn natu- 
rally gave to it the power to create courts of law, which 
in the other governments was usually given to the gen- 
eral assembly. He also gave to it the power to enter 
judgments on impeachments, — that is to say, the right 
to try impeachments, — which were to be originated and 
prosecuted by the assembly, or lower house. Previously 
the right to remove officials had been given in a general 
way to the general assembly by the Fundamental Orders 
of Connecticut of 1638, the charter of Connecticut of 
1662, and the charter of Rhode Island of 1663, and ap- 
parently the general assembly was to try as well as to 
charge and accuse the culprit. The word impeachment 
was not used, and it is found in this Pennsylvania frame 
of 1683 for the first time. 

In this frame the dividing up of the work of impeach- 
ment as it appears in the National Constitution is found 
for the first time. The general assembly was to bring 

59 



Evolution of the Constitution 

the impeachment, and the council was to try it and decide 
on guilt or acquittal. It was the natural result of the 
provision for a double legislature, and shows the gradual 
working out of a more detailed political form. When 
double legislatures were finally adopted in the Revo- 
lution this arrangement for impeachment accompanied 
them and was reproduced in the National Constitution. 

The executive part of Penn's government was worked 
out with considerable detail. The governor and his 
council were to have care of the peace and safety, lay 
out towns, model public buildings, inspect the treasury, 
and establish schools. The governor was to preside at the 
council meetings and have a treble vote. This treble 
vote was probably some pet idea of Penn's. 

But the most striking part about this description of 
executive duties is a sentence which sums them up in a 
general way : 

' * The governor and provincial council shall take care that all 
laws (statutes and ordinances which shall at any time be made 
within the said province) be duly and diligently executed." 

This clause, shortened by omitting the part in paren- 
thesis, which is mere surplusage, was adopted with little 
or no change in the constitutions of 1776, and finally 
appeared in the National Constitution as a summing up 
of the executive duties of the President in the phrase, 
*'He shall take care that the laws be faithfully executed." 

The germ of this clause had appeared in the Massa- 
chusetts charter of 1629, in a sentence which said not 
that any particular person or department should execute 
the laws, but simply that all the laws should be " duly 

60 



Colonial Charters and Constitutions 

observed, kept, performed, and put in execution." The 
Maryland charter of 1632 assigned to Lord Baltimore 
the duty of executing the laws, and in the Fundamental 
Orders of Connecticut of 1638 and the Concessions of 
East Jersey of 1665 the duty is assigned to the governor. 
The first step out of corporation forms was to say, with 
more words than were necessary, that all the laws should 
be kept, performed, and executed. The next step was 
to assign their execution to a particular department, still 
using more words than were necessary. The duty and 
the person to perform it being now defined, we find in the 
constitutions of 1776 that the language for expressing it 
is much abbreviated, until in the National Constitution it 
reaches complete condensation in the simple phrase, 
which covers everything, *' He shall take care that the 
laws be faithfully executed." 

There was also an interesting clause providing a way 
for amending the constitution. It could be done by the 
consent of the governor and six parts in seven of the 
council and assembly. Locke had provided that his 
constitution should never be altered, and other charters 
and constitutions had been silent on the subject, though, 
of course, it was generally understood that they could be 
changed by the authority that had made them. But 
this provision in Penn's constitution was the first appear- 
ance in American governments of any definite way of 
amending." It was repeated with various changes in 
the constitutions of 1776, until the way now found in 
the National Constitution was reached. 

Annexed to Penn's frame are " Laws Agreed upon 
in England," many of which are what afterwards became 

61 



Evolution of the Constitution 

known as bill-of-rights provisions, such as fair trial by 
jury, process to be in English, fees and fines to be 
moderate. We have already observed the first bill of 
rights of this kind starting in the Concessions of West 
Jersey, and the bill we find in Penn's frame is simply a 
development, with a few provisions added. 

Penn's frame was amended, a few months after it was 
passed, by reducing the provincial council from seventy- 
two to eighteen members, and by adding that the gov- 
ernor must act "by and with the advice and consent 
of" the provincial council, — peculiar words, which have 
appeared several times, which seem to have been used 
in old trading-corporation charters, for they can be 
found in the charter of the Grocers' Company granted 
in 1429, and which, after being repeated all through 
the colonial charters and the constitutions of I 'J'jdy took 
their place in the National Constitution. 

We must now consider the next charter in chrono- 
logical order, — the second Massachusetts charter of 
1 69 1. The Puritans had created under their first charter 
a government so free and independent, and had assumed 
so many of the attributes of sovereignty, coining their 
own money and cutting the cross out of the English 
ensign, that they needed looking after. Soon after 
Charles II. came to the throne he became convinced 
that all the colonies required a little overhauling, Mas- 
sachusetts most of ail. It would be well, he thought, 
to hold dissenters like the Puritans with a somewhat 
stronger hand. Proceedings were begun to annul the 
Massachusetts charter, and they were consummated 
June 18, 1684. 

62 



Colonial Charters and Constitutions 

For some years Massachusetts had no charter, and was 
under direct royal rule, with a governor appointed by 
the Crown. But in 1691 Mary and William granted a 
new charter, which embodied some of the developments 
we have seen in the other colonies. The people appear 
to have had some voice in shaping it, for they had their 
agents in England. 

This charter of 1 691 provided that there should be a 
governor, a deputy governor, and a secretary, all ap- 
pointed by the Crown, and not elected by the people 
as in the old charter. The people were allowed to 
elect the members of a legislature called the house of 
freeholders. There were to be twenty-eight assistants 
elected by the general assembly, which was to consist 
of the governor, the assistants, and the house of free- 
holders, all sitting together. 

The twenty-eight assistants were the most interesting 
feature of the government, for they were to be chosen 
to represent different localities of the colony, very 
much as senators are now chosen under our National 
Constitution. The province of Massachusetts, under 
this charter of 1 691, was a union of the old province of 
that name with New Plymouth, Maine, and the land be- 
tween the Sagadahoc River and Nova Scotia ; and it is 
very significant that each of these divisions is given its 
representatives in the council, or assistants, as they were 
called, which afterwards developed into the Senate of 
the national government and represented the States. 
The union under the Massachusetts charter was a union 
of provinces which had been formerly, in a certain sense, 
distinct sovereignties, as the States which formed the 

63 



Evolution of the Constitution 

Union under the National Constitution had been dis- 
tinct sovereignties. It is certainly remarkable that the 
Massachusetts union should have foreshadowed the 
National Union in its method of giving representation 
to the provinces of which it was composed. 

It is another instance to show how the natural condi- 
tions in America were of their own inherent force, and 
without imitation, constantly tending towards the form 
of government that was finally reached. It shows, also, 
that, in the forms which were gradually adopted, there 
was no thought of imitating anything in the British Con- 
stitution. The framers of the Massachusetts charter, in 
advancing the governor's council to the function of rep- 
resenting the separate provinces of a union, were cer- 
tainly not imitating the House of Lords, for that body 
had no such function. They were merely conforming 
to natural conditions, using what had already proved 
itself suitable for certain purposes, and adapting means 
to ends in a very practical manner. 

The confusion of legislative, executive, and judicial 
functions was rather worse than usual in this Massachu- 
setts charter, for not only were the governor and the 
assistants part of the general assembly, but the governor 
and assistants were also to act as a court to probate wills 
and grant letters of administration. 

By another provision, the governor, "with the advice 
and consent of" the assistants, appointed judges, sher- 
iffs, marshals, and other officers, which was an appoint- 
ing power similar to that of the President and Senate 
under the Constitution. The governor had also an ab- 
solute veto on all the bills passed by the general court. 

64 



Colonial Charters and Constitutions 

The veto power is now clearly established in American 
governments. While showing one remarkable advance, 
this charter also contained the most important and best- 
tested provisions of previous experience. 

There was one provision, however, of a peculiar char- 
acter, and the result of the more stringent policy of 
colonial control which Charles II. had started. The 
governor had power to dissolve the assembly whenever 
he chose. By an amendment to the charter in 1726 
the representatives could adjourn from day to day, and 
for a period of two days, but not longer without the 
consent of the governor. This power of the governors 
over the popular assemblies seems to have existed after 
the year 1701 in most of the colonies except Pennsyl- 
vania, and was always bitterly resented by the people. 
But in the end it proved to be a source of constitutional 
development ; for their long experience with it led to 
a very careful framing of the powers of the President 
over Congress. 

We now come to two frames of government in Penn- 
sylvania which may be considered together, — the frame 
of 1696, usually- known as Markham's frame, and the 
Charter of Privileges of 1 701, usually known as the 
constitution of 1701. The frame of 1696 is noticeable 
chiefly for its reactionary tendency. It reduced to a 
normal condition Penn's frame of 1683, which, as we 
have seen, was excessively developed, — developed, in 
fact, far beyond any other colonial constitution. 

The frame of 1696 was made by Governor Markham 
and the people during Penn's absence, and was to re- 
main in force unless Penn should object to it. The 
5 65 



Evolution of the Constitution 

principal feature of it was that the right to originate 
legislation was taken away from the council and given 
to the assembly. Thus this strange idea of creating an 
upper house which alone could originate laws, which 
had been a mere freak of Locke's and Penn's, was done 
away with forever in American governments. 

A few years after this frame of Markham's Penn re- 
turned to the province, and in 1701, after much con- 
sultation with the people and repeated discussions and 
meetings, gave them the constitution of 170 1, always 
regarded in Pennsylvania as a very good one, and under 
it the people lived until the Revolution. 

It also was reactionary, and, as often happens when 
there has been excessive action, the reaction was ex- 
cessive. Penn had attempted in his first frame to 
develop the council into a second house of legislature, 
and developed it too much. In the constitution of 
1 70 1 he went to the other extreme and abolished the 
council altogether. There was to be merely a governor 
appointed by himself and an assembly elected by the 
people. 

The assembly was allowed to control its own adjourn- 
ments without interference from the governor, — a right 
of which the Pennsylvanians were always very proud,— 
and they maintained it unimpaired down to the Revo- 
lution. 

The assembly was also allowed to impeach officials 
and have all the power of an assembly according to the 
rights of freeborn subjects of England. In after-years, 
in its contests with the governor, the assembly relied on 
this clause to give it all the privileges of the British 

66 



Colonial Charters and Constitutions 

House of Commons. Some of the members became 
very learned in English parliamentary history, and their 
minutes are full of evidences of it 

Some new bill-of-rights provisions appear in this 
constitution, and some of the privileges given to the 
assembly were also distinct developments and became 
permanently embodied in American constitutional forms. 
The assembly was told that it could choose its own 
speaker and officers and " be judge of the qualifications 
and elections of its own members." This right and the 
very words in which it was given were repeated in the 
constitutions of 1776 and appeared in the National 
Constitution. 

Penn's excessive reaction in abolishing the council 
was corrected in a curious way, which shows how 
natural that body was to the colonial governments. 
The constitution did not provide for the election or 
appointment of a council, but a council was incidentally 
referred to in a clause which said that no person should 
be obliged to answer before the governor and council, 
or in any other place than an ordinary court of justice, 
unless appeals to the governor and council should be 
established by law. 

It is difficult to understand why this strange side-refer- 
ence to a council should have been put in unless it was 
the result of carelessness and haste in having the con- 
stitution quickly adopted on the eve of Penn's hurried 
return to England. At any rate, it was not long before 
Penn began appointing a council to assist the governor, 
and his heirs continued the practice. The assembly from 
time to time protested, and appealed to the constitution 

67 



Evolution of the Constitution 

as not authorizing a council in anyway. But the council 
was always appointed, and maintained its position as a 
de facto if not a de jure part of the government. 

It acquired in time almost the same function as an 
upper house of legislature, because it would advise the 
governor to veto the bills of the assembly, and the 
governor was under instructions from the proprietors to 
be guided by the council. This, the assembly always 
declared, was an outrageous violation of its rights, be- 
cause the constitution provided for only a single legis- 
lative body, and by the instructions to the governor and 
the appointment of the council a second house of legis- 
lature, unknown to the constitution, was forced upon the 
people. But it all shows how inevitable was the de- 
velopment towards a second house. 

Our last charter is that of Georgia, granted in 1732. 
We should naturally expect it to show remarkable 
developments, but, owing to peculiar circumstances, it 
does not. It differed from all the other colonial charters 
and constitutions, and was neither the charter of a trading 
company nor the constitution of a people, but a chari- 
table trust or eleemosynary corporation. General Ogle- 
thorpe and some other good people wished to relieve 
the debtor prisons of England, and adopted the plan, 
by no means yet obsolete in Europe, of dumping their 
contents on America. 

A grant of land was obtained, and the company was 
called the ** Trustees for Establishing the Colony of Georr 
gia in America." The trustees were in the first instance 
to appoint the common council, and as vacancies oc- 
curred in this council, by death or resignation, the mem- 

68 



Colonial Charters and Constitutions 

bers of the company could elect persons to fill them. 
The members of the company were to make rules and 
laws, to be approved by the Crown. The common coun- 
cil was to carry on the business affairs ot the company 
and appoint judges, treasurers, secretaries, governors, 
and such other officers as should be found necessary, 
and to apportion land among the debtors, but not to 
any members of the company. 

There is always some contribution towards develop- 
ment in the crudest and most reactionary document ; 
so in this one we find the first attempt to separate the 
departments of government in a clause providing that 
no person holding an office of profit under the corpo- 
ration should be a member of the corporation. 

The corporation was to remain in existence twenty- 
one years, and in that time could establish courts of 
law. But the command of the militia was given to the 
governor of South Carolina. At the expiration of the 
twenty-one years such form of government could be es- 
tablished as the Crown should think best. 

The scheme was not successful, and when the twenty- 
one years expired the trustees were glad to surrender. 
Soon after 175 1 the Crown organized a government 
which resembled those of the other colonies, which 
have been already described. There were a governor, a 
council, — which seems to have sat as an upper house, — 
and an assembly, and the governor and council sat 
together as a court of chancery and admiralty. 



69 



CHAPTER III. 

THE CONSTITUTIONS OF 1 7/6. 

The Georgia charter of 1732, discussed in the pre- 
ceding chapter, may very well be omitted from our con- 
sideration, for it was not in the line of development of 
the other governments. Its peculiar feature of creating 
a charity organization sets it completely aside. 

This gives us the Pennsylvania constitution of 1701 as 
the last written frame of government that appeared in 
colonial times. The three Pennsylvania constitutions 
taken together, — of 1683, of 1696, and of 170 1, — with 
their amendments, and the Massachusetts charter of 
1 69 1, constitute the most advanced colonial forms, and 
show the nearest approach in the colonial period towards 
the final goal of the national document. 

By about the year 1700 the colonial governments 
seem to have all reached a stage of development which 
was sufficient for practical purposes. They had partially 
emerged out of the trading-company forms, and usually 
consisted of a governor, a governor's council, and a 
single-branch legislature, with a tendency on the part 
of the council to develop into an upper house of legis- 
lature, and one or two of the colonies had an upper 
house. Besides this, several of them had a few of the 
bill-of-rights provisions, which were afterwards much 
extended, and most of them had peculiar arrangements 

70 



The Constitutions of 1776 

or peculiarly worded sentences, which afterwards ap- 
peared in the National Constitution. 

This development was sufficient for the needs of the 
time, and in the seventy-five years that passed between 
the year 1 700 and the outbreak of the Revolution there 
was little or no advancement that can be traced in docu- 
ments or writings. No doubt the colonists discussed 
the subject, for while some of the colonies, like Con- 
necticut and Rhode Island, which elected their own 
governors, were well content, others, like Massachusetts, 
which were under royal governors, saw many things in 
their forms of government that they would have liked to 
change. It was in this long period of apparent silence 
and inaction that it was gradually seen that the confusion 
of departments which prevailed in all the governments 
was a mistake. 

But it was not until the year i J'jd, when all the colo- 
nies except Rhode Island and Connecticut set actively 
to work to make new constitutions for themselves, en- 
tirely free from any influence from the Crown, that there 
was developed any intensity of thought upon the subject. 
In that year there was certainly a great school of consti- 
tution-making at work, and the comparison of ideas and 
conflict of opinion were a lesson and discipline in funda- 
mental principles such as have never been known in 
America in any one year before or since. 

Judging by the first constitution which was made at 
that time, the development in the subject since the year 
1700 had been very slight. This first constitution was 
that of New Hampshire. The work on it was begun 
December 21, 1775, and finished January 5, 1776. It 

71 



Evolution of the Constitution 

was finished several months before any of the others 
were begun. There were no guides for it except the 
old colonial charters and constitutions, most of which 
had been made in the previous century, and it is not 
surprising that we find it a very crude instrument. 

The province is still called a colony, and the consti- 
tution is to continue in force only "during the present 
unhappy and unnatural contest with Great Britain." 
The convention which framed it was elected by the peo- 
ple and called a '- Congress." The constitution begins 
by providing that this Congress is to become the House 
of Representatives of the new government, and is to 
choose twelve persons, taking them from different coun- 
ties, to be a distinct and separate branch of the legisla- 
ture by the name of a ** Council for the Colony." 

If, however, the war should last longer than a year, 
this council was to be elected by the people, each county 
electing its proportion. The council was to appoint its 
own president, and both branches of the legislature 
must agree to every act before it could become a law. 
Neither branch could adjourn longer than from Saturday 
to Monday without the consent of the other. Money- 
bills must originate in the lower house. Both houses 
together were to appoint all public officers, including 
the general field officers of the militia. The office of 
governor was not provided for. 

This was certainly, in some respects, a crude instru- 
ment. The absence of a governor and the appointment 
of all public officers by the legislature was barbarous. 
But still it adopts the idea of a double-branch legislature, 
which, as we have seen, had been gaining ground all 

72 



The Constitutions of 1776 

through the colonial period ; and, like the Massachusetts 
charter of 1691, it assigns to the upper branch the func- 
tion of representing certain localities, — the counties, — 
in which we see the germ of the United States Senate's 
representation of States. 

The provision that money-bills must originate in the 
lower house was, of course, familiar English parlia- 
mentary law, and was also a principle that had been 
successfully contended for in the colonial assembly of 
Pennsylvania, but had never appeared before in an 
American written frame of government. 

The clause which says ** neither branch shall adjourn 
for any longer time than from Saturday until the next 
Monday without the consent of the other" was repeated 
in various forms in the other constitutions, until we find 
it in the National Constitution in the form, " Neither 
house, during the session of Congress, shall, without the 
consent of the other, adjourn for more than three days." 

South Carolina came next, and her constitution was 
finished March 26, 1776. This was before any of the 
others had been begun except New Hampshire : so New 
Hampshire's document was the only guide, and it was 
followed quite closely. 

The convention, or provincial congress, as it was 
called, resolved itself into the general assembly, or lower 
house, of the new government, and, after October 21, 
1776, was to be elected by the people. As in New 
Hampshire, the lower house was at first to choose the 
upper house, which was to be called the legislative 
council and be composed of thirteen members. 

Here the resemblance to New Hampshire's constitu- 

73 



Evolution of the Constitution 

lion stops, for South Carolina is to have a governor called 
** President and Commander-in-Chief ;" and this is the 
first use of the term president to describe the executive 
in the constitutions of 1776. There are also to be a 
vice-president, and a privy council composed of the 
vice-president and six others, three from the assembly 
and three from the legislative council. 

This privy council is to advise the president, when 
required, and was, no doubt, copied from or suggested 
by the privy council of the English king. As the gov- 
ernor's council of colonial times had passed into an 
upper house of legislature, it may have been thought 
necessary to supply its place by this privy council. It 
may also have been the mere personal suggestion of 
William Henry Drayton, who had great influence in the 
draughting of the constitution. 

Some of the later constitutions of i 'j']6 adopted this 
privy council, and added details for keeping a written 
register of its advice and opinions which should always 
be open to inspection. This is, I think, one of the few 
instances that can be found of a direct imitation of a 
foreign form ; and it is to be observed that it is an 
imitation that failed. It was tried for a few years in 
several of the States and then abandoned. In future 
chapters we shall find other instances of this same fate 
befalling imitations, and it goes to show that foreign 
imitations or plagiarisms in constitution-making are not 
only few, but also usually unsuccessful. 

The president, in the South Carolina constitution, was 
given an absolute veto. He could not, however, ad- 
journ or dissolve the legislature, though he might call 

74 



The Constitutions of 1776 » 

them before the time to which they stood adjourned. 
The advance here is evident, and requires no comment. 
But the confusion of departments in the vice-president 
and privy council forming a court of chancery was 
gross. 

Virginia's constitution was finished June 29, I77^> — ^ 
few months after South Carolina's. It was made by a 
convention of forty-five members of the house of bur- 
gesses, and has prefixed to it a bill of rights adopted 
June 12, 1776, the first part of which has the language 
of the opening paragraph of the Declaration of Inde- 
pendence. The rest of the bill of rights is remarkable 
as being very full and complete and containing more 
provisions than had ever appeared before in the colo- 
nies. Besides the ordinary bill-of-rights provisions, the 
bill contains some political maxims, and among these is 
the first statement in our constitutions of the principle 
that the legislative, executive, and judicial departments 
of government should be separate, and that the same 
persons should never exercise the powers of any two of 
them. 

When we come to the constitution itself, we find it 
repeats the statement of the necessity of keeping the 
departments separate. The legislature is to consist of 
two houses, — a lower house, called the house of dele- 
gates, and an upper house, called the senate ; and this is 
the first time the upper house is called a senate. As it 
was emerging from the condition of a governor's council, 
it was called, as in the New Hampshire constitution, a 
legislative council. But now it has become a legislative 
body in the full sense of the term, and is given an ap- 

75 



Evolution of the Constitution 

propriate name. It is also representative of large dis- 
tricts or localities, as in the New Hampshire constitu- 
tion. 

Both the senate and the lower house are given power 
to choose their own speaker, appoint their own officers, 
and settle their own rules of proceeding. In subse- 
quent constitutions we find this power given in very- 
much the same words, with the addition that each house 
is to determine the elections and qualifications of its 
own members, and these phrases are repeated until they 
appear in the National Constitution. 

All laws are to originate in the lower house, and the 
senate can only reject or approve, or amend with con- 
sent of the lower house. Money-bills, however, cannot 
be amended by the senate, but can only be rejected or 
approved. The lower house has the right to impeach, 
and the impeachments are to be tried not by the sen- 
ate, but by a court. 

This rather excessive privilege of the lower house 
alone having the right to originate legislation was a mere 
freak, which was not followed by the other States. 

The governor is to be elected by joint ballot of the 
two houses, and is given the pardoning power, but not 
the veto power. He cannot adjourn the legislature, but 
can call them before the time to which they stand ad- 
journed. He has to assist him a privy council of eight, 
chosen by joint ballot of both houses from their own 
members or from the people. The council is to choose 
a president, who shall be the lieutenant-governor, and 
the proceedings of the council in giving advice to the 
governor and other matters are to be entered in a book 

76 



The Constitutions of 1776 

and signed by the members. Any member has the privi-^ 
lege of dissenting from any act of the council and enter- 
ing his dissent in the book, and the book is to be always 
open to inspection by the legislature. 

Subsequent constitutions in the other States copied 
this provision for the record-book of the council, and an 
unsuccessful effort was made to have a council of this 
sort in the National Constitution. But this imitation of 
the British privy council failed at every point, and was 
soon abandoned by the States that had adopted it. 

The New Jersey constitution was begun on May 26 
and finished July 3, 1776. This was the first of the 
constitutions of I Jj6 that was submitted to the people 
for their approval. The others had all been prepared 
and put in force by the conventions which framed them. 

The New Jersey document was made about contem- 
poraneously with the constitution of Virginia, and shows 
a strong resemblance to it. The legislature is to have 
two branches, — an assembly and a legislative council, — 
and the two branches are to elect the governor by joint 
ballot, as in Virginia. Both the upper and the lower 
house can, however, originate legislation, and the upper 
house is not confined to the mere right of rejecting the 
bills of the lower house. But the upper house cannot 
originate a money bill. 

It is to be observed that the upper house is called a 
legislative council, going back to the name it had when 
it was just emerging from the condition of governor's 
council. There is also another provision which looks 
backward. The privy council is composed of three 
members of the legislative council, — a curious sort of 

77 



Evolution of the Constitution 

restoration of the legislative council's old function of 
governor's council. 

A method of impeachment, however, is provided 
which is quite advanced. The lower house is to bring 
the impeachment, and the upper house is to try it ; 
and this plan was afterwards adopted in the National 
Constitution. 

The governor is to be chancellor and surrogate-general, 
and the governor and the legislative council are to con- 
stitute a court of appeals. The confusion of depart- 
ments is quite gross, and the doctrine of separation so 
distinctly announced in Virginia was evidently not yet 
appreciated in New Jersey. 

Delaware's constitution was put in force September 
21, 1776, and was closely modelled on those that had 
preceded it, but added some developments. The execu- 
tive is called the president, as in the South Carolina 
constitution, and in several subsequent constitutions of 
1776 the same word is used to describe the governor. 
Afterwards, when the chief magistrate of the United 
States was named President, the States all went back to 
the term governor. 

In this Delaware constitution the president, with the 
advice of the privy council, may lay embargoes and pro- 
hibit the exportation of goods for a period not exceeding 
thirty days during a recess of the legislature. This was 
the first appearance of this provision, and it was often re- 
peated afterwards. There is also in this constitution a 
method of amendment by five members in seven of the 
assembly and seven members of the legislative council. 
This way of amendment was evidently taken from the 

78 



The Constitutions of J 776 

Pennsylvania colonial constitutions, and was the first ap- 
pearance of a method of amendment in any of the con- 
stitutions of 1776. Each house of the legislature is for 
the first time given power to expel a member, and the 
provisions for adjournments show a nearer approach to 
methods finally adopted in the National Constitution. 

The Delaware constitution, however, shows the usual 
confusion in the appointing of public officers. The 
president and the general assembly are to appoint the 
justices of the Supreme Court and the county courts ; 
the president and privy council are to appoint the secre- / 
tary, attorney-general, and some other officers ; and the 
general assembly is to appoint generals and field offi- 
cers of the militia and all other officers of the army and 
navy. 

But the president, with the advice and consent of the 
privy council, may embody the militia and act as captain- 
general and commander-in-chief of them. In the con- 
stitutions of 1776 the governor is commonly described 
as commander-in-chief of the State forces. Sometimes 
he is called captain-general and commander-in-chief, and 
sometimes merely commander-in-chief In the National 
Constitution the President is given part of this title, and 
called commander-in-chief of the army and navy of the 
United States. 

Pennsylvania's constitution was finished September 
28, a few days after Delaware's. It began with a bill 
of political and civil rights made up to some extent 
from the Declaration of Independence, which had been 
passed a few months previously. It provides for amend- 
ment by vote of the people, and then, strangely enough, 

79 



Evolution of the Constitution 

clings to the old colonial system of governor, council, 
and assembly, without any second or upper house of 
legislature. This failure to fall in with the tendency 
towards an upper house may possibly have been due to 
the influence of Franklin, who had a fancy for a single- 
house legislature. But it was more probably due to the 
unprogressive element in the population, which at that 
time had seized the political power in Pennsylvania, and 
in after-years destroyed the prestige that had made 
Philadelphia the metropolis of the countiy. 

But Pennsylvania soon got more than enough of a 
single house, which, having no check upon its action, 
became very reckless and endangered the liberties of the 
people. A sort of make-shift for a double house was 
provided for in compelling every bill to pass two ses- 
sions of the assembly before it became a law, but this 
proved entirely unsuccessful. 

The president s council, which was to be known as 
the Supreme Executive Council, was to consist of twelve 
members elected from the different counties by the 
people. The president and council were to appoint 
public officers, propose business to the assembly, hear 
impeachments by the assembly with the justices of the 
Supreme Court, lay embargoes, pardon offences, and 
"take care that the laws be faithfully executed." This 
was another retrogression, and a most bungling con- 
trivance. It was an attempt to create a twelve-headed 
executive with functions taken from the old governor's 
council of colonial times, and new ones added. 

But the most curious part of this constitution was 
that it provided for a council of censors, two from each 

80 



The Constitutions of 1776 

city and county, who were to see that the constitution 
was not violated and that all departments of government 
did their duty. It was to pass censure when duty was 
neglected, order impeachments, recommend measures 
to the legislature, and, when necessary, call a convention 
to amend the constitution. It was an awkward attempt 
to prevent unconstitutional legislation. Altogether, this 
was a most extraordinary constitution, not much of an 
advance, and caused great dissatisfaction in its working* 
After Pennsylvania's constitution was put in force, 
more than a month passed away before a new one 
appeared, which was Maryland's, finished November 
vN.ii, 1776. It begins with a bill of rights which was the 
most complete and advanced that had up to that time 
appeared. It announced again the doctrine that the 
legislative, executive, and judiciary departments should 
be kept separate. Then followed provisions about free- 
dom of speech, trial by jury, right to petition, right of 
search, and quartering of troops on the people. In fact, 
it was so full that it completed the development of bills 
of rights, and the hundred years that have since elapsed 
have added little or nothing to it. 

When the National Constitution was submitted to the 
people, great complaints were made that it contained no 
bill of rights, and when the States finally agreed to adopt 
it it was with the understanding that a bill of rights 
should immediately be added by way of amendment. 
The first eleven amendments to the National Constitu- 
tion contain this bill of rights, and they are taken, in 
many instances, word for word from the bill of rights 
of Maryland. For example, the following clause in the 
6 81 



Evolution of the Constitution 

bill of rights of the Maryland constitution is copied 
verbatim in the eighth amendment to the National 
Constitution, except that the words "ought not to" are 
changed to " shall not :" 

• ' Excessive bail ought not to be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted." 

Again, in the Maryland bill of rights we find, "That 
a well-regulated militia is the proper and natural defence 
of a free government ;" and the second amendment to 
the National Constitution says, " A well-regulated militia 
being necessary to the security of a free State, the right 
of the people to keep and bear arms shall not be in-,^ 
fringed." The Maryland bill of rights says, " No soldier 
ought to be quartered in any house in time of peace 
without the consent of the owner, and in time of war 
in such manner only as the legislature shall direct ;" and 
the third amendment to the National Constitution says, 
" No soldier shall in time of peace be quartered in any 
house without the consent of the owner, nor in time of 
war but in a manner to be prescribed by law." 

We find also in this Maryland bill of rights several 
other ideas which were adopted in the National Consti- 
tution, such as the prohibition of ex post facto laws, 
of attainder of treason, of the granting of titles of no- 
bility, and of the receiving, by any person in public 
office, of a present from any foreign prince or state. 

In the matter of political government the Maryland 
constitution provided for a legislature of two branches, 
a senate and a house of delegates. The forms in pre- 
vious constitutions were, for the most part, followed ; 

82 



The Constitutions of 1776 

but the lower house was given the right to inquire into 
complaints and grievances as the grand inquest of the 
State, to punish for contempt or breach of privilege, and 
to commit any person to jail for any crime, to remain 
until discharged by law. The senate, it is interesting 
to observe, is to be chosen by electors in each county, 
— ^very much after the manner adopted in the National 
Constitution for electing the President. 

A month later, December 18, 1776, North Carolina's 
constitution appeared. It begins with a bill of rights 
copying many of the provisions that we have just ob- 
served in Maryland and forbidding retrospective laws. 
The only new provision, which was afterwards univer- 
sally accepted, is that all bills shall be read three times 
in each house before they become laws, and must be 
signed by the speakers of both houses. Except for 
this, there is nothing particularly advanced about this 
constitution, and it provides no way of amendment. 

The Georgia constitution, adopted February 5, 1777, 
shows no development whatever. In fact, it goes back 
to the old colonial system of a governor, a governor's 
council, and a single-branch legislature. The pardoning 
power is given to the legislature instead of to the gov- 
ernor, and the document is in every way an inferior 
one. 

New York's constitution was adopted April 20, 1777. 
It had been a long time in making, — in fact, since 
July 10, 1776. Much difficulty seems to have been 
experienced with it, and the convention adjourned and 
readjourned repeatedly, moving about from place to 
place. In most respects it conformed to previous in- 

83 



Evolution of the Constitution 

struments, but had two striking developments which 
passed into the National Constitution. 

It begins with a long and rather irrelevant preamble, 
reciting the condition of the country in general and of 
New York in particular, and then quotes the whole of 
the Declaration of Independence, of which it highly ap- 
proves. When we come to the frame of government 
we find a legislature consisting of an assembly and a 
senate. The governor or chancellor and the judges of 
the Supreme Court are to constitute a council to revise 
all the bills of the legislature before they are passed into 
laws, so as to prevent hasty legislation. This council 
is also to have a veto power if they think a bill should 
not be passed, and this veto power is described in al- 
most the same language as the veto power of the Presi- 
dent in the National Constitution : 

* ' And that all bills which have passed the Senate and Assem- 
bly shall, before they become laws, be presented to the said coun- 
cil for their revisal and consideration ; and if upon such revision 
and consideration it should appear improper to the said council, 
or a majority of them, that the said bill should become a law in 
this State, that they return the same, together with their objec- 
tions thereto in writing, to the Senate or House of Assembly (in 
whichsoever the same shall have originated), who shall enter the 
objections sent down by the council at large in their minutes, 
and proceed to reconsider the said bill. But if, after such recon- 
sideration, two-thirds of the said Senate or House of Assembly 
shall, notwithstanding the said objections, agree to pass the same, 
it shall, together with the objections, be sent to the other branch 
of the legislature, where it shall also be reconsidered, and, if ap- 
proved by two-thirds of the members present, shall be a law. 
And, in order to prevent any unnecessary delays, be it further 
ordained that if any bill shall not be returned by the council 

84 



The Constitutions of 1776 

within ten days after it shall have been presented, the same shall 
be a law, unless the legislature shall, by their adjournment, ren- 
der a return of the said bill within ten days impracticable ; in 
which case the bill shall be returned on the first day of the meet- 
ing of the legislature after the expiration of the said ten days." 

The National Constitution, in Section 7 of Article L, 
after providing that the President, if he approve of a bill, 
shall sign it, goes on to say, — 

" But if not, he shall return it, with his objections, to that house 
in which it shall have originated, who shall enter the objections at 
large on their journal and proceed to reconsider it. If after such 
reconsideration two-thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered, and, if approved 
by two-thirds of that house, it shall become a law. ... If any 
bill shall not be returned by the President within ten days (Sun- 
days excepted) after it shall have been presented to him, the 
same shall be a law, in like manner as if he had signed it, unless 
the congress by their adjournment prevent its return, in which 
case it shall not be a law. ' ' 

This shows with great clearness how the modified veto 
power of the President in the National Constitution was 
gradually worked out on American soil, and that it was 
not a copying of the absolute veto power of the British 
king. The two quotations also show how the National 
Constitution improved and simplified in language all 
the provisions it took from previous documents. 

The New York governor is also to send to the legis- 
lature a message informing it of the condition of the 
State, and recommending to its consideration matters 
that he deems important ; and this, of course, suggested 

85 



Evolution of the Constitution 

the similar provision in the National Constitution for the 
President's message. 

These resemblances to the National Constitution are 
certainly remarkable. But in other respects the New 
York constitution had nothing in it particularly worthy 
of notice, except that it provided for voting by ballot 
as an experiment to see if it was better than viva voce 
voting. The assembly was also once a year to appoint 
a council of senators to appoint public officers. This 
was also evidently an experiment. The assembly was 
to bring impeachments, and the impeachments were to 
be tried before a court consisting of the president, the 
senators, the chancellor, and the judges of the Supreme 
Court. 

The constitution of Vermont was adopted July 8, 
1777, but it shows no advancement, because it was 
copied almost word for word from the constitution of 
Pennsylvania. It followed the Pennsylvania plan of a 
governor and council, with a single-branch legislature, 
and even copied the Pennsylvania council of censors. 

The rejected constitution of Massachusetts was ordered 
by the convention to be laid before the people February 
28, 1778. Although voted down by the people, it em- 
bodied much of the best thought of the time in consti- 
tution-drawing. Its legislature was to consist of a senate 
and a house of representatives, the same names that 
were afterwards used in the national document, and the 
senators, twenty-eight in number, were to be chosen from 
certain districts. The senate and the house were to be 
distinct bodies, and money-bills could originate only in 
the house. The governor was president of the senate, 

86 



The Constitutions of 1776 

commander-in-chief of the militia, and admiral of the 
navy. He could also grant reprieves for six months, but 
had not the pardoning power, which was placed in a sort 
of committee, consisting of the governor, the lieutenant- 
governor, and the speaker of the house of representa- 
tives. The governor could lay embargoes for forty 
days in a recess of the general court, and he and the 
senate were to try impeachments which should be 
prosecuted by the house. There was also a provision, 
taken from the New York constitution, that the gov- 
ernor should inform the legislature of the condition of 
the State and recommend matters to its consideration. 
This rejected constitution disclosed no new develop- 
ments, but contained most of the best provisions which 
had been in previous documents. 

A new constitution for South Carolina was framed 
about the same time, and finished March 19, 1778, but 
did not go into effect until November of that year. It 
provided for a governor, a senate, and a house of repre- 
sentatives, and was in other respects so well abreast of 
the times that no comment is required. In fact, the 
State constitutions had now brought forth about all 
that they were to contribute to the national document. 
Their senate and house of representatives, methods of 
adjournment, impeachment, veto power, and bills-of- 
rights provisions were almost the same as in the 
National Constitution. 

New Hampshire also at this time framed a new con- 
stitution for herself, which was finished June 10, 1778, 
submitted to the people, and rejected. It was very 
simple and short. The previous constitution had pro- 

87 



Evolution of the Constitution 

vided no governor, and this one did not definitely pro- 
vide a governor, but gave the president of the council 
some of the usual executive powers. The council was 
an upper house of the legislature, and elected its own 
president. Besides this double-branch legislature, one 
or two other modern improvements were added ; but 
New Hampshire was very backward in constitutional 
development, and seemed disincHned to make much 
effort to advance. 

The next constitution in order was one which Massa- 
chusetts finally persuaded her people to accept in 1780. 
It was very elaborate and verbose, giving reasons for its 
provisions, and full of generalities about the sovereignty 
of the people and the absurdity of hereditary titles, all 
of which was probably thought necessary to overcome 
the suspicions of the people and gain their acceptance 
of the instrument. The governor is given the modified 
veto power which we found in the constitution of New 
York, and in other respects this Massachusetts consti- 
tution, like the one that was rejected, is fully up to the 
times. One or two new developments appear, — a provi- 
sion about the suspension of habeas corpus, and another 
giving members of the legislature privilege from arrest, 
both of them very like similar provisions which after- 
wards appeared in the National Constitution. 

New Hampshire, like Massachusetts, having had her 
constitution of 1778 rejected by the people, made 
another attempt, and in 1784 secured a new constitu- 
tion. It requires, however, but little comment, because 
it was copied from the Massachusetts constitution of 
1780. Only one new development appeared, — a pro- 

88 



The Constitutions of 1776 

vision prohibiting persons accused of crime from being 
twice tried for the same offence. This afterwards ap- 
peared in the National Constitution, and has been almost 
universally copied in modern State constitutions. 

The last constitution of all was a new one for Ver- 
mont in 1786. But it was a mere repetition, with slight 
changes, of her constitution of 1777, which was taken 
from the Pennsylvania constitution of 1776. 



89 



CHAPTER IV. 

THE ENGLISH SOURCES OF THE CONSTITUTION. 

After reading the assertions of learned writers that 
our Constitution was modelled on the British govern- 
ment as it existed in 1787, I have sometimes turned to 
the words of the Constitution to see the resemblance, 
and have never been able to find it. As one reads 
along, sentence after sentence, everything seems so 
un-English and so original and peculiar to our own 
locality that the mind is forced to the conclusion that 
it either grew up as a natural product of the soil or 
was invented off-hand, — struck off at a given time, as 
■^ Mr. Gladstone says. I recommend to those who be- 
lieve in the British model theory to adopt this simple 
plan : Read our Constitution, sentence by sentence, 
from beginning to end, and see how many sentences 
they can trace to an origin in the British government. 

I do not deny that in a certain sense it is all English. 
In fact, I have taken considerable pains to show how 
our Constitution was developed by English colonists 
out of the forms of English trading corporations through 
the English colonial charters. Nor will any one deny 
that our language, literature, laws, and many of our 
customs and modes of thought, as well as our character- 
istic instincts and feelings, are of English origin. I 
would be the last person in the world to dispute the 

90 



English Sources 

Anglo-Saxon influence in our civilization. But all this 
is very different from the dogma some wish to establish, 
that our Constitution was taken or copied from or sug- 
gested by the forms of the British government as it ex- 
isted in 1787. In my opinion, there was no copying, 
because we were so thoroughly Anglo-Saxon in our 
instincts and feelings that imitation was excluded. We 
acted after the manner of our race, and built, stone 
by stone, out of the natural material and conditions 
round us. 

In the first eleven amendments to the Constitution 
a number of the provisions about trial by jury and free- 
dom of speech were doubtless evolved from the ex- 
perience of the race in England. But even these, as 
already shown, were worked out slowly and re-evolved 
on American soil. In the body of the Constitution it- 
self — the political frame-work proper — there is little or 
nothing that can be traced to the forms of the British 
government as it existed in 1787, or at any other time 
for hundreds of years previous. 

I do not deny that the framers of our Constitution 
considered and discussed the forms of the British Con- 
stitution. But they considered them principally, as the 
minutes of their debates will show, for the purpose, or 
at any rate with the result, of avoiding them. They 
were intelligent men, — a large number of them were 
college-bred, — and they discussed the forms of govern- 
ment of all countries. They were not unmindful of the 
example of Holland, the democracies of Greece, the 
Roman republic and empire, and the free republics of 
the Middle Ages. They took what light they could 

91 



Evolution of the Constitution 

from them all ; and I think as good an argument could 
be framed to show that they were guided by what they 
knew of classic antiquity as could be brought forward 
to prove that they were guided by the British Consti- 
tution. 

But the foundation for all their final decisions, the 
basis which the forms of government in Europe merely 
illustrated or made more certain, was their own expe- 
rience of nearly two hundred years with the colonial 
charters and constitutions and the constitutions of 1776. 
What they took from England went back through that 
two hundred years, and then not to the British govern- 
ment, but to the forms of the old trading charters. 
What had been evolved from the trading charters had 
been so long with us that it was completely American- 
ized, and it was valued by the framers of the Constitu- 
tion for that reason, and because it had been tested by 
two hundred years of American life. 

They did not commit the absurdity of skipping those 
two hundred years of their history, or of crossing an 
ocean and entering other countries to copy constitu- 
tions. If they had done such a thing it would have 
been very unlike the Anglo-Saxon race. On the con- 
trary, they did, I think, just what we should expect of 
that race. They took their own experience as it was 
up to that date in the place and community for which 
they were making a frame of government. They made 
no skips or jumps, but went backward in the past di- 
rectly from themselves and in their own line, taking for 
their guide that which was nearest to them and latest 
developed, provided it had been tested in that line of 

92 



English Sources 

their own past. The Anglo-Saxon always works in this 
way, step by step, beginning with what he has and what 
is directly applicable. He seldom, if ever, obliterates 
his past or goes aside or afar to seek a new theory, and 
never invents a brand-new political fabric off-hand. 

The East India Company, for example, was first 
chartered in 1599 under the name of the ** Governor 
and Company of Merchants of London Trading with 
the East Indies." It had a governor and twenty-four 
directors. The directors were to elect the governor 
and all other officers, make laws, punish crimes, and so 
forth. It was, nevertheless, merely a trading company, 
with a touch of political power, just like the companies 
that founded the American colonies which we have been 
discussing in the previous chapters. Yet out of it has 
grown, by slow degrees, the present vast and completed 
political government of India. All this growth was, so 
to speak, out of itself, like the growth of the trading 
companies of the American colonies. In 1661 we find 
Charles 11. giving it the high governmental power of 
making peace or war with any power not Christian, of 
erecting forts, and exercising criminal and civil juris- 
diction through judges, just as we find these same powers 
gradually given to the American colonies in the colonial 
charters. In 1677 it was allowed to establish a mint 
and coin money. And so it went on, adding huge ter- 
ritorial possessions to the British Empire, and becoming 
more and more of a political power, and yet remaining 
in form the same old trading corporation, until 1833. 

Even then, when its trading attributes were mostly 
taken from it and all its property was vested in the 

93 



Evolution of the Constitution 

Crown, the forms of the trading charter still remained, 
and it governed the vast properties and possessions as 
trustee for the Crown. It was slowly transformed, not 
to suit a theory or to imitate anything, but to suit 
changing circumstances, until, in 1858, it became a 
recognized department of the British government with 
one of the secretaries of state in control, instead of the 
old trading board with its committees on finance, on 
politics and war, on judicial and legislative interests, 
and the famous secret committee. 

But let us return to our own Constitution and be defi- 
nite and accurate about it, and accuracy and definite- 
ness is more than can be said for the advocates of the 
theory that it was copied from the British government. 
Let us examine its provisions closely, to see what they 
resemble. 

We will begin with the powers of the President, be- 
cause they are the most simple and striking, and it is 
said that they were copied from the powers of the British 
king. Blackstone, in his commentaries on the English 
law, has five or six chapters devoted to the powers of 
the king, and it is said that the convention of 1787 
selected from these the powers of our President. Mr. 
Bryce, in his *' American Commonwealth," declares that, 
being guided by the description of the royal power in 
Blackstone, the framers of our Constitution were misled 
into taking rather ancient kingly powers for the Presi- 
dent, because the description in Blackstone gave the 
theory of royal power rather than its practice, and its 
theory was many years behind its practice. 

When we read those chapters in Blackstone we find 

94 



English Sources 

most of them taken up with a description of all sorts 
of prerogatives and powers, the king's dignity, his 
sovereignty and pre-eminence, his perpetuity, his privy 
council, his right to appoint ports and havens, wharfs 
and quays, public markets and fairs, to regulate weights 
and measures, to grant precedence, and to prevent sub- 
jects from leaving the kingdom, together with others 
which were obviously not taken for the American 
President. The only powers which could by any possi- 
bility have been copied are a few mentioned in the 
middle of Chapter VIL, Book I, such as the veto 
power, the right to send and receive ambassadors, make 
treaties, and declare peace and war. 

Let us take the first of these, the veto power, — cer- 
tainly a very important one. The veto power has since 
then been taken away from the English king. But at 
the time Blackstone wrote the king was said to have 
an absolute veto on all the bills passed by Parliament. 
He could, whenever he pleased, prevent their becoming 
laws, and Parliament was helpless. 

If the Convention of 1787 had given the President an 
absolute veto, it might possibly be said that they took 
it from the king. But they gave the President a modified 
veto, — a veto which he could maintain only when there 
were less than two-thirds of both houses of Congress 
against him ; a sort of veto utterly unknown in England. 

The history of this modified veto has been shown 
from time to time in the previous chapters. The colo- 
nists had been very familiar with the absolute veto power. 
The governors of some of the colonies had it, and in 
others the king had the right to annul absolutely any 

95 



Evolution of the Constitution 

laws within a certain number of years after their passage. 
All sorts of trouble and contentions followed from this 
absolute veto, and the colonists were not admirers of it. 
Only a few of the constitutions of 1776 gave it to the 
governor, and it was not until the constitution of New 
York suggested the plan of a modified veto that it be- 
came in any degree acceptable, and New York's sugges- 
tion was adopted almost word for word in the National 
Constitution. 

So also the right to send ambassadors was an absolute 
right in the British Crown, which it shared with no other 
department. But in the American Constitution we find 
that the President cannot appoint ambassadors except 
with the advice and consent of the Senate. The Crown 
had the absolute right to make treaties, but the Presi- 
dent can make them only with the advice and consent 
of two-thirds of the Senate. The pardoning power was 
absolute in the Crown, but the President cannot pardon 
in cases of impeachment. The king had the power to 
declare peace or war, but this power is given to Con- 
gress, and not to the President ; and the power to grant 
letters of marque, which was in the king, was given to 
Congress alone. 

If the framers of our Constitution took the President's 
powers from the powers of the British Crown as de- 
scribed in Blackstone, they were great bunglers, and 
could hardly have been able to read the English lan- 
guage. 

The only power possessed by the President which is 
like any of the powers of the Crown is his command 
of the army and navy. But the king's chief command 

96 



English Sources 

had annexed to it, and as a part of it, the right to 
" raise and regulate" armies and navies ; and this, in the 
American Constitution, was given to Congress. The 
President's power, which is described in the words 
*' shall be commander-in-chief of the army and navy," 
was, moreover, evidently derived from the constitutions 
of 1776 and the colonial governors. The governors 
had had this power for more than a hundred years, and 
they were often called ** Commanders-in-Chief," in the 
words of the National Constitution. 

The President's message has been supposed to have 
been taken from the English king's address from the 
throne on opening Parliament, and perhaps there is 
nowadays a slight resemblance, because the President 
usually sends his message at the opening of Congress. 
But the language of the Constitution which describes 
the message makes it a mere report on the condition 
of the country to be given at any time, very much like 
the report of a head officer of any organization : " He 
shall, from time to time, give to Congress information 
of the state of the Union, and recommend to their con- 
sideration such measures as he shall judge necessary 
and expedient." This was taken, as already shown, 
from the New York constitution of 1777, and had ap- 
peared for the first time as far back as the New Hamp- 
shire commission of 1680. 

The President was also given powers which do not 
even in the slightest degree resemble any of the powers 
of the king. He could require the opinion, in writing, 
of the principal officer in each of the executive depart- 
ments upon any subject relating to the duties of their 
7 97 



Evolution of the Constitution 

respective offices. His powers of appointing to public 
office with the consent of the Senate, of filling vacancies 
in the recess of the Senate, and of appointing to inferior 
offices without the consent of the Senate if Congress 
should give him the power, are also so totally unlike 
any similar power of the English king that it is impos- 
sible to suppose any resemblance or imitation. 

The simple phrase, already noticed, which sums up 
the most important of the President's duties, " He shall 
take care that the laws be faithfully executed," had no 
origin in England, but first appeared, as already shown, 
in one of the Pennsylvania colonial constitutions, and was 
repeated with variations in the constitutions of 1776. 

The English king had the sole power of assembling 
Parliament by writ. But the President can convene 
both houses only **on extraordinary occasions." He 
cannot call them except on these extraordinary occa- 
sions, and he has no power to prorogue or adjourn 
them when met except when they disagree as to the 
time of their adjournment, and then **he may adjourn 
them to such time as he shall think proper.'* This 
arrangement was the result of long experience in deal- 
ing with colonial governors. 

In some of the colonies the royal governors had the 
power to adjourn the popular assemblies, and when they 
were displeased with an assembly, or wanted to force 
something from it, they would adjourn it and prevent 
its meeting again until it gave what was wanted. It 
was a most oppressive use of power, and the Pennsyl- 
vanians whose governors had not this privilege con- 
sidered themselves very fortunate. 

98 



English Sources 

The statement in the National Constitution which 
says that the President ''shall commission all the officers 
of the United States" was not taken from any power of 
Blackstone's enumeration, but was the result of expe- 
rience, and was a brief and sensible way of putting what 
had been verbosely and circuitously stated in many of 
the 1776 constitutions. Some of them gave in detail 
what officers their governors should commission. Often 
in each clause where the officers were created it was 
stated that the governor should commission them ; and 
sometimes there were officers who were apparently not 
commissioned by the governor or his council. Some 
of the 1776 constitutions, however, had a simple clause 
that all their officers were to be commissioned by the 
governor. The framers of the National Constitution 
adopted this evidently clear and easy form, and it is a 
good illustration of the way in which the national docu- 
ment was developed into its rather remarkable clearness 
and simplicity out of the jumbled and often very care- 
less expressions of the instruments that preceded it. 

The attempt to show resemblances between the 
American Congress and the British Parliament is as 
weak as the attempt to derive the President's powers 
from those of the king. The opening passages of the 
Constitution state that the lower house is to be com- 
posed of members chosen every second year by the 
people, and farther on we see that both houses shall 
assemble at least once in every year, beginning on the 
first Monday in December. The President has no con- 
trol whatever in dissolving Congress, or in calling them 
together, except to adjourn the two houses when they 

99 . 



Evolution of the Constitution 

disagree as to the time of adjournment and to call them 
for a special emergency. This at the very start was 
totally unlike the British House of Commons, which 
was not elected at definite periods, but stayed in exist- 
ence until dissolved by the king ; and the reason for 
this difference was that our people had found in colo- 
nial times that great inconvenience ensued whenever the 
governor could in any way control the popular assem- 
bly. The fixing of a definite period for the election 
of Congressmen was intended to protect the popular 
assembly, by taking it entirely out of the control of the 
President, and, so far from being an imitation of the 
British Constitution, was intended to avoid what was 
supposed to be a defect in it. 

Again, we find in almost the next clause that the 
members of the House of Representatives are to be ap- 
portioned according to population, giving one repre- 
sentative to every thirty thousand of the people. This 
was also the very reverse of the English Constitution, 
which allowed members of the House of Commons to 
be elected by pocket boroughs, by colleges, and in all 
sorts of ways, without any regard to an even distribution 
among the people. Each Congressman was also obliged 
to be an inhabitant of the State in which he should be 
chosen. But in England there was no rule as to resi- 
dence, and a member of the House of Commons might 
reside in one county of England and be elected from 
any other county. 

When we come to the Senate it is as unlike the 
House of Lords as is possible. It is not hereditary. 
Its members do not hold office for life, but for six 

lOO 



English Sources 

years, and it is constituted expressly by localities, each 
State being represented by two senators who must be 
inhabitants of that State. In forming the Senate, the 
framers of the Constitution developed it, as we have 
already seen, out of their own experience in the con- 
stitutions of 1776 and in colonial times, where we saw 
the second house of legislature, or senate, gradually 
evolved out of the governor's council. The only pro- 
vision which shows a resemblance to the House of 
Lords is that the Senate has the right to try impeach- 
ments, and this is also the result of experience, and not 
imitation ; for the constitutions of 1776 made all sorts 
of arrangements for courts to try impeachments, and 
the placing of this power in the upper house was finally 
decided upon after many experiments. 

The Senate was also intended to preserve the balance 
of power among the States and prevent the oppression 
of the small States by the larger ones. John Dickinson 
was in the convention as a representative from Delaware, 
a very small State, and he had much influence in shaping 
this part of the Senate's functions. Delaware had been 
partially annexed to Pennsylvania before the Revolu- 
tion. The two provinces had the same governor, but 
different legislatures. At first they had been under the 
same governor and the same legislature, and it cost 
Delaware somewhat of a struggle to get an independent 
legislature. She knew by experience how easily a small 
State could be unduly controlled or ignored, and her 
eminent representative naturally became the champion 
of the weaker commonwealths. This championship 
resulted not only in the peculiar constitution of the 

lOI 



Evolution of the Constitution 

Senate, but also in that clause which says, "No new 
State shall be formed or created within the jurisdiction 
of any other State, nor any State be formed by the 
junction of two or more States, or parts of States, with- 
out the consent of the legislatures of the States con- 
cerned, as well as of the Congress." All this was, of 
course, native development. 

There is also a clause in the part of the Constitution 
devoted to the legislative department which has not 
often been noticed. It provides that a majority of each 
house shall constitute a quorum, but a smaller number 
may adjourn from day to day and may be authorized to 
compel the attendance of absent members. This was 
doubtless suggested by what had happened in Pennsyl- 
vania. The old Quaker assembly under Penn's consti- 
tution of 1 70 1 had resisted the movement to make a 
new constitution in 1776. They had been defeated in 
the end by members absenting themselves so that no 
quorum could assemble. Less than a quorum assem- 
bled day after day, and, having no power to compel the 
attendance of other members, they gradually became a 
laughing-stock for their inefficiency, and the legislative 
body that had ruled the colony for nearly one hundred 
years became extinct. This event was fresh in the 
minds of the framers of the National Constitution, and 
they took care that nothing similar should happen to 
the Federal government. 

Other characteristics of the American Congress might 
also be noted. The powers to determine their own rules 
of proceeding, to punish members for disorderly be- 
havior, to expel a member, to keep a journal, not to 

. 102 



English Sources 

adjourn for more than three days without each other's 
consent, privilege from arrest, and other matters, are 
more or less characteristic of all legislatures the world 
over. Some of these provisions could have been taken 
from England, but several of them, as we have seen, 
were developed out of colonial experience. 

The clause which forbids a senator or a representative 
from holding any civil office which shall have been cre- 
ated or the emoluments whereof shall have been in- 
creased during the time for which he was elected was 
an obviously good provision which did not have to be 
copied from any country ; and the other provision, that 
no person holding any office under the United States 
should be a member of either house during his continu- 
ance in office, had been repeated in various forms in the 
constitutions of 1776, and was a necessary part of the 
doctrine that the departments of government should be 
kept distinct. The clause requiring money-bills to 
originate in the lower house was, of course, an old 
English idea, but it had been worked out and contended 
for in the colonial governments and in the Revolutionary 
constitutions. 

Finally, Congress is given only a limited power. Its 
rights and duties are enumerated, and it cannot go be- 
yond this enumeration ; but the power of the British 
Parliament was general and had no limits fixed to it. 
This attribute alone would destroy all possibility of re- 
semblance or imitation. It was the result of the pecu- 
liar situation of the country, — a federation of States 
coming together in a Union, to which they intended 
to delegate only a portion of their sovereignty. 

103 



Evolution of the Constitution 

When we come to the federalism of the Constitu- 
tion, the things forbidden to the individual States, — 
making treaties with foreign powers, granting letters of 
marque, coining money, issuing bills of credit, passing 
bills of attainder, ex post facto laws, and laws impairing 
the obligation of c©ntracts, — there could not of course 
be any possibility of imitation. 



104 



CHAPTER V. 

THE EVOLUTION FROM THE COLONIAL CHARTERS SHOWN 

IN DETAIL. 

I. Absolutism. 

We are not accustomed to associate despotism with 
our ideas of the origin of government in the United 
States. But government began with us in despotism, 
as it has begun with other nations. The first American 
charter gave Sir Walter Raleigh absolute control for six 
years of any colony he should establish, and this not 
because the persons who drew the charter were mon- 
archists or believed in absolutism as against liberty, but 
because, in the absence of all experience in founding 
or managing colonies, this gift of absolute control was 
thought to be the best way of encouraging some one to 
take the risks of colonizing. 

It was a matter of business, the most convenient way 
that could be devised at the time ; and what was appar- 
ently very despotic power was given, as it commonly 
is in untried and dangerous enterprises, without any 
intention of establishing a theory or principle. Des- 
potism has begun in the infancy of many nations in 
a similar way, as the best means of meeting present 
difficulties. 

Twenty-two years afterwards, in the Virginia charter 
of 1606, the absolutism was modified in another attempt 
to meet the requirements of circumstances. The law- 

105 



Evolution of the Constitution 

making power was given to the king, and the adminis- 
tration of any laws he should devise was given to coun- 
cils appointed by him. This was absolutism, but not 
so crude and simple as in Sir Walter Raleigh's charter. 
It was, however, so far as practical government was con- 
cerned, the last of absolutism in America, for the next 
document, the Virginia charter of 1609, allowed a sort 
of representative government, and after that no govern- 
ment that could be called absolute was ever put in force. 

Absolutism, however^ survived in a merely formal way 
for a long time afterguards. The New England charter 
of 1620 created a close corporation which could make 
any laws it pleased for the government of its territory. 
But this corporation used this absolute power, as already 
shown, to establish a very free representative system of 
government for New England : so that, in this instance, 
the absolutism quickly produced republicanism. Nor 
was the very liberal power given to John Mason, the pro- 
prietor of New Hampshire, ever successfully enforced 
in practice. 

The Maryland charter of 1632 also continued abso- 
lutism as an obsolete form, and, although requiring 
the consent of the freemen for all laws, allowed Lord 
Baltimore to enact laws in emergencies when there was 
no time for calling a meeting of the assembly. This 
same provision was repeated in the Carolina charters of 
1663 ^^^ 1665, and in the Pennsylvania charter of 1681, 
which were all, like that of Maryland, proprietary char- 
ters. But the absolutism of these rather curious pro- 
visions was never enforced, and any attempt to enforce it 
would have brought on a popular uprising. It remained 

106 



Evolution from the Charters 

as a mere survival of the past, like a part or faculty of a 
species of animal which has outlived its ancient useful- 
ness. 

"We for vs, our heires and successors, are likewise pleased 
and contented, and by these presents do giue and graunt to the 
said Walter Raleigh, his heires and assignes for ever, that hee 
and they, and euery or any of them, shall and may from time to 
time for euer hereafter, within the said mentioned remote landes 
and Countreis in the way by the seas thither, and from thence, 
haue full and meere power and authoritie to correct, punish, par- 
don, gouerne, and rule by their and euery or any of their good 
discretions and pollicies, as well in causes capital, or criminall, as 
ciuil, both marine and other, . . . within 6. yeeres next ensuing 
the date hereof, according to such statutes, lawes and ordinances, 
as shall bee by him the saide Walter Raleigh, his heires and 
assignes, and euery or any of them deuised, or established." 
(Sir Walter Raleigh's Charter of 1584.) 

"And we do also ordain, establish, and agree, for Us, our 
Heirs, and Successors, that each of the said Colonies shall have 
a Council, which shall govern and order all Matters and Causes, 
which shall arise, grow, or happen, to or within the same several 
Colonies, according to such Laws, Ordinances, and Instructions, 
as shall be, in that behalf, given and signed with Our Hand or 
Sign Manual, and pass under the Privy Seal of our Realm of 
England.'' (Virginia Charter of 1606.) 

"Wee, by the Advice of the Lords and others of the said 
priuie Councill, do by these Presents ordaine, constitute, limett, 
and appoint, that from henceforth, there shall be for ever here- 
after, in our Towne of Plymouth, in the County of Devon, one 
Body politicque and corporate, which shall have perpetuall Suc- 
cession, which shall consist of the Number of fourtie Persons, 
and no more, which shall be, and shall be called and knowne 
by the Name the Councill established at Plymouth, in the County 
of Devon for the planting, ruling, ordering, and governing of 
New-England, in America. . . . and also to make, ordaine, and 

107 



Evolution of the Constitution 

establish all Manner of Orders, Laws, Directions, Instructions, 
Forms, and Ceremonies of Government and Magistracy fitt and 
necessary for and concerning the Government of the said CoUony 
and plantation." (Charter of New England of 1620.) 

' ' And the said Captain John Mason doth further covenant for 
him, his Heirs and Assigns, that he will establish such Govern- 
ment in the said portion of Lands and Islands granted unto him, 
and the same will from time to time continue, as shall be agree- 
ble as near as may be to the Laws and Customs of the Realm of 
England ; and if he shall be charged at any time to have neglected 
his duty therein, that then he will reform the same, according to 
the Discretion of the President and Council, or in Default thereof, 
it shall be lawful for any of the aggrieved Inhabitants or Planters, 
being Tenants upon the said Lands, to appeal to the chief Court 
of Justice of the said president and Council." (Grant of New 
Hampshire of 1629.) 

' ' And forasmuch, as in the government of so great a province, 
sudden accidents do often happen, whereunto it will be necessary 
to apply a remedy, before the freeholders of the said province, 
their delegates or deputies, can be assembled to the making of 
laws, . . . therefore for the better government of the said prov- 
ince, we will and ordain and by these presents for us, our heirs 
and successors do grant unto the said now Lord Baltimore and his 
heirs, that the said now Lord Baltimore and his heirs, by them- 
selves or by their magistrates and officers in that behalf duly to be 
ordained as aforesaid may make and constitute fit and wholesome 
ordinances, from time to time, within the said province, to be 
kept and observed as well for the preservation of the peace, as for 
the better government of the people there inhabiting, and so as 
the said ordinances be not extended, in any sort to bind, charge, 
or take away the right or interest of any person or persons of or 
in their life, member, freehold, goods or chattels." (Maryland 
Charter of 1632.) 

"With power of judicature [to John Mason] in all causes and 
matters whatsoever, as well criminall, capitall, and civil, ariseing 
or which may hereafter arise within the lymitts, bounds, and pre- 

108 



Evolution from the Charters 

cincts aforesayd, to bee exercised, and executed according to the 
laws of England as neere as may bee, by the said capt. John 
Mason, his heyers and assignes, or his or their Deputys, Leeften- 
ants. Judges, Stewards, or Officers thereunto by him or them as- 
signed, deputed or appoynted from tyme to tyme, . . . saveing 
and always reserving vnto the said Counsell and their successors, 
power to receive, heare and determine all and singular appeale 
and apeales of every person and persons whatsoever, dwelling or 
inhabiting within the said Territorys and Yslands or any part 
thereof, soe granted as aforesaid, of and from all judgements, and 
sentences whatsoever given within the said lands and territory 
aforesaid." (Grant of New Hampshire of 1635.) 

The provision given above from the Maryland charter of 1632 
is substantially repeated in the grant of Maine of 1639. 

The Carolina charter of 1663 repeats substantially the pro- 
vision given above from the Maryland charter of 1632. 

The grant to the Duke of York of 1664 repeats substantially 
the provision given above from Sir Walter Raleigh's charter of 
1584. 

The Carolina charter of 1665 repeats substantially the pro- 
vision given above from the Maryland charter of 1632. 

The grant to the Duke of York of 1674 repeats substantially 
the provision given above from Sir Walter Raleigh's charter of 

1584. 

The Pennsylvania charter of 1681 repeats the provision given 
above from the Maryland charter of 1632. 

2. Separate Departments. 

In despotic governments the three great powers, 
legislative, executive, and judicial, are exercised by the 
same person. This is the cause of the despotism and 
the means by which the government remains despotic. 
As the three powers gradually become separated and 
are controlled by different persons, the government ad- 
vances in freedom. 

109 



Evolution of the Constitution 

The first American government — Sir Walter Raleigh's 
charter of 1584 — was thoroughly despotic, and. Sir 
Walter exercised all three of the powers. In the next 
government — the Virginia charter of 1606 — the law- 
making power was given to the king, and the adminis- 
tration of the laws to councils appointed by him. Here 
there was a partial separation of two of the depart- 
ments ; but the separation was not very distinct, for the 
king appointed the executive body which was to ad- 
minister the laws he made, and this executive body, 
besides administering the laws, may have also acted as 
a judiciary department. But still it was a beginning of 
separateness. 

In the Virginia charter of 1609 the laws were made 
by a council resident in England, which council was 
elected by a majority vote of the members of the cor- 
poration ; and this same council appointed the gov- 
ernor and other officers. Here we have a legislative 
body elected, so to speak, by the people, and an execu- 
tive department appointed by the legislature. But there 
is, as yet, no separate judicial department, and pre- 
sumably the power of that department is to be exercised 
by the executive. 

Apparently no attempt was made in any of the colo- 
nial governments to establish a separate judicial depart- 
ment until the Mar>4and charter of 1632, which gives 
Lord Baltimore express power to establish courts of 
justice and provide everything that relates thereto. 
But six years afterwards, in the fundamental orders of 
Connecticut of 1638, the judicial power is given to the 
magistrates, who were in effect a governor's council and 

no 



Evolution from the Charters 

part of the executive : so that the advance of the Mary- 
land charter is checked, and colonial government again 
consists of only two departments, legislative and execu- 
tive, with the executive exercising the powers of a ju- 
dicial department. 

In 1662, however, the Connecticut charter gave ex- 
press power to the general assembly to establish separate 
courts, both civil and criminal, and from that time, with 
the exception of New Hampshire, the colonial govern- 
ments seem to have had the three departments, legisla- 
tive, executive, and judicial. 

There was still a certain amount of confusion among 
them. The governor's council, as we have seen, often 
sat with the assembly, and in this way the executive 
was too much mingled with the legislative. The grad- 
ual evolution of the governor's council into an upper 
house of the legislature was constantly remedying this 
defect ; but in many other ways the confusion lingered. 
There was a tendency to give the governor's council 
judicial duties to perform, as in the Massachusetts char- 
ter of 1 69 1, and, although the three powers were usually 
separately created, there was no express command pro- 
hibiting an individual from holding two inconsistent 
offices. A judge might be elected to the legislature, 
and there were no express words in the charter or con- 
stitution to compel him to resign his judgeship. Simi- 
larly, a member of the legislature might hold some 
executive office or be an officer in the militia. 

The first appearance of any conscious attempt to 
keep the powers more distinctly separated is in the 
Georgia charter of 1732, which provides that no person 

'~~^ III 



Evolution of the Constitution 

holding an office of profit under the corporation shall 
be a member of the corporation. The corporation, or 
members of the company, under this charter, made the 
laws and appointed the council which carried on the 
company's executive business ; so that the corporation 
was, in effect, the legislative department ; and the pro- 
vision for more distinct separateness meant that no 
member of the legislative department should hold any 
oihce in the executive department, or, presumably, in 
t% judicial department, if there was one. 

Twenty- two years afterward, in Hutchinson's plan 
of union of 1754, we find a similar provision, to the 
effect that no member of the council should be chosen 
to any office, civil or military. After this no more 
written forms of government appeared until the consti- 
tutions of 1776, and in the second one of these, the 
South Carolina constitution, we find a somewhat elabo- 
rate provision declaring what offices are inconsistent 
with each other and cannot be held by the same person. 

In Virginia's constitution, which came next, the gen- 
eral principle is laid down for the first time that *' the 
legislative, executive, and judiciary departments shall 
be separate and distinct, so that no one of them exercise 
the powers properly belonging to the others, nor shall 
any person exercise the powers of more than one of 
them at the same time." 

It is curious, however, as showing the old condition 
of things still lingering, that at the close of this general 
principle in the Virginia constitution an exception is 
made allowing the justices of the county courts to be 
eligible to either house of assembly. 

112 



Evolution from the Charters 

But the movement in favor of more distinct separate- 
ness was now well under way, and, as we pass along 
among the constitutions of 1776, we find nearly every 
one of them either laying down the broad principle first 
declared by Virginia or giving in detail the offices which 
were inconsistent and could not be held by the same 
person ; and in some of them both the principle and the 
detailed description of the inconsistent offices are given. 

By the time the National Constitution was framed, the 
doctrine of separate departments was thoroughly under- 
stood. The Constitution describes each department and 
assigns its duties with a clearness that leaves no doubt 
of their distinctness, and, to show what offices are in- 
consistent, contents itself with a simple phrase forbidding 
any person holding an office under the United States 
to be a member of either house during his continuance 
in office. 

The slow growth of the principle of separate depart- 
ments during two hundred years — from the confused 
despotism of Sir Walter Raleigh's charter of 1 584 to the 
enlightened distinctness of the Constitution, which makes 
each department almost independent — is an excellent 
illustration of the way in which our constitutional ideas 
have grown naturally on our own soil, without that imi- 
tation of foreign forms upon which some writers have 
insisted. 

At a time when the departments of our colonial gov- 
ernments were much confused, the departments of the 
British government were quite distinct, and our consti- 
tution-makers could have imitated that distinctness with 
a stroke of the pen. But they were not looking for 
8 113 



Evolution of the Constitution 

anything to imitate, and they were not constructing 
theories or ideals. They were constructing practical 
governments suited to the conditions of time and place, 
and, among primitive conditions in a new country, a 
government with all the departments fused into one, 
or into two only slightly separated, is often the best that 
can be devised. 

/The first and original of all governments is the govern- 
ment of a father over the family, which, so far as a family 
is concerned, could not be improved by any doctrine of 
divided authority ; and for certain simple enterprises 
the one-man power is still the best. The colonizers of 
America did not construct the single authority of Sir 
Walter Raleigh's charter or the very slightly separated 
departments of succeeding charters because they were 
ignorant of the principle of distinct departments ; they 
did it because they were working out the great prob- 
lem of the continent according to its needs. They 
were simple when their conditions were simple, and 
they became elaborate as the requirements became 
elaborate. Our present National Constitution would 
have been as unsuited and ridiculous to the America 
of 1584 as Sir Walter's charter of that year would 
be unsuited and ridiculous to the United States of 
to-day. V 

It is a common assertion that the doctrine of separate 
departments was first taught to us, as well as to the 
rest of the world, by Montesquieu's ** Spirit of Laws," 
which appeared in 1 748. But the colonial governments 
had begun to separate their departments long before 
that year, and separate departments were to be found 

114 



Evolution from the Charters 

in the British government and in other governments on 
the continent of Europe. When we come to read the 
chapter in Montesquieu which treats of the subject r 
(Book XL, Chap. VI.), we find that he makes no pre- 
tence of having discovered anything, but merely com- 
ments on the separated departments of the governments 
of Europe, and praises the British government for having 
advanced farther in this respect than the others. Mon- 
tesquieu doubtless emphasized the importance of sepa- 
rated departments, and in that sense helped and en- 
couraged their development ; but he did nothing more, 
and professed to do nothing more. 

The quotations from the charters and constitutions 
which show the development in this section, being too 
long to give in full, are summarized, a method which 
will be followed in other sections when the length of 
the quotations renders it necessary : 

No person holding an office of profit under the corporation to 
be a member of the corporation. (Georgia Charter of 1732.) 

No member of council to hold any civil or military office. 
(Hutchinson's Plan, 1754.) 

Certain inconsistent offices not to be held by the same person. 
(South Carolina Constitution of 1776.) 

The principle laid down that the three departments should be 
separate and distinct. (Virginia Constitution of 1776.) 

Certain inconsistent offices not to be held by the same person. 
(New Jersey Constitution of 1776.) 

Certain inconsistent offices not to be held by the same person. 
(Delaware Constitution of 1776.) 

Certain inconsistent offices not to be held by the same person, 
(Pennsylvania Constitution of 1776.) 

The principle laid down that the three departments should be 
separate and distinct ; and, certain inconsistent offices not to be 

"5 



Evolution of the Constitution 

held by the same person. (Maryland Declaration of Rights and 
Constitution of 1776.) 

The principle laid down that the three departments should be 
separate and distinct. (North Carolina Declaration of Rights of 
1776.) 

Certain inconsistent offices not to be held by the same person. 
(North Carolina Constitution of 1776.) 

The principle laid down that the three departments should be 
separate and distinct ; and, certain inconsistent offices not to be 
held by the same person. (Georgia Constitution of 1777.) 

Certain inconsistent offices not to be held by the same person. 
(New York Constitution of 1777.) 

Certain inconsistent offices not to be held by the same person. 
(Rejected Constitution of Massachusetts of 1778.) 

Certain inconsistent offices not to be held by the same person. 
(South Carolina Constitution of 1778.) 

Certain inconsistent offices not to be held by the same person. 
(Articles of Confederation, 1778.) 

Certain inconsistent offices not to be held by the same person. 
(Drayton's Articles of Confederation, 1778.) 

Certain inconsistent offices not to be held by the same person. 
(Rejected Constitution of New Hampshire of 1778.) 

The principle laid down that the three departments should be 
separate and distinct ; and, certain inconsistent offices not to be 
held by the same person. (Massachusetts Constitution of 1780.) 

The principle laid down that the three departments should be 
separate and distinct ; and, certain inconsistent offices not to be 
held by the same person. (New Hampshire Constitution of 

1784.) 

The principle laid down that the three departments should be 
separate and distinct ; and, certain inconsistent offices not to be 
held by the same person. (Vermont Constitution of 1786.) 

Members of the national legislature to be ineligible to other 
offices under the national government, except those belonging 
peculiarly to the functions of the legislature. (Randolph's Plan 
of 1787.) 

Members of the national legislature to be ineligible to other 

116 



Evolution from the Charters 

offices under the national government. (Pinckney's Plan of 

1787.) 

The Constitution prohibits members of Congress from holding 
any other office under the United States. (The Constitution.) 

3. The House of Representatives. 

The legislative, or law-making, power is with us the 
foundation of government ; for it is in this body that 
the will of the people is first shown and most completely 
expressed. The first article of the National Constitution, 
and the first words of that article, are devoted to de- 
scribing the legislature, and our modern State constitu- 
tions usually begin in the same way. 

This conception was reached by a process of evolution. 
The colonial charters were apt to begin by creating a 
governor and describing the executive department, and 
it is evident on reading them that they regarded this 
part of government as the foundation and the legisla- 
ture as secondary and a mere check on the governor 
and his council, or as a privilege graciously allowed the 
people. But in the constitutions of 1776 we see the 
legislature assuming the modern position and impor- 
tance which it now has without the slightest question. 

Our legislative power, as now developed, consists of 
two bodies, — the Senate and the House of Representa- 
tives, — and of these the Senate is always spoken of as 
the upper house, and is regarded as the greater in 
dignity. But the lower house is the greater in power 
and importance, because it is more directly representa- 
tive of the people and holds the purse-strings ; that is 
to say, has the sole power of originating money-bills. 
It has sometimes been called the first house, although 

117 



Evolution of the Constitution 

the Senate is called the upper house, and it is rightly 
called first, because it was developed first. 

As the summary shows, its roots started in the Virginia 
charter of 1609, and it succeeded to the absolutism of 
the two previous charters, — the Virginia charter of 1 606 
and Sir Walter Raleigh's of 1584. It began in that 
Virginia charter of 1609 in the simple form of a council 
which was to be elected by the members of a corpora- 
tion and make the laws for the colony. This was the 

i real beginning of American representative government. 

j The power of the people, on which the great fabric of 
our republic is now reared, was first recognized by giving 
power to all the members of a corporation which owned 
a colony. From this it was a natural step to transfer 
the power from the members or stockholders of the 
corporation to the inhabitants or people of the colony. 

This step we find gradually made in the next three 
charters. The Virginia charter of 161 1— 12 gives the 
power to all the members of the company to make the 
laws in a mass-meeting. The Massachusetts charter of 
1629 gives the power in the same way, but in the Maiy- 
land charter of 1632 the law-making power is given for 
the first time, not to the members or stockholders of a 
corporation, but to the inhabitants or people of the 
colony, and they are allowed to exercise it either in 
mass-meeting or, if they become too numerous for that, 
through delegates. 

It is certainly rather strange that we should have 
developed our great governmental power, the power 
of the people and their legislature, out of the forms 
of a corporation. But our people have always made 

118 



Evolution from the Charters 

great use of corporations, and we have now developed 
their use in business enterprises far beyond anything 
known in other countries. American corporation law 
has become, like our patent law, a great department of 
jurisprudence peculiar to the United States. Indeed, 
we have pushed the development of corporations so far 
that their enormous power for evil or good has become 
a political question. 

The Maryland charter of 1632, as we have said, con- 
tained a suggestion that the people of the colony could, 
if they chose, exercise the law-making power through 
delegates instead of in a mass-meeting. The next 
document, the fundamental orders of Connecticut of 
1638, carried this suggestion a step farther, and pro- 
vided that the people should not exercise the law-making 
power in mass-meeting, but should always elect deputies, 
which, with the magistrates or governor's council, should 
constitute a body called the general court. 

Thus, in the year 1638 we have a regular represen- 
tative legislature established, called the general court, 
and consisting of the governor, the governor's council, 
and the delegates elected by the people. This remained 
the form of the legislative power all through the colo- 
nial period. We find it repeated in the Connecticut 
charter of 1662, the Rhode Island charter of 1663, 3.nd 
the Concessions of East Jersey of 1665. In 1669 
Locke's curious constitution of Carolina carries out the 
same idea of deputies elected by the people ; but in- 
stead of the governor and the governor's council he 
joins with the deputies several orders of the nobility, 
and calls the whole a parliament. 

119 



Evolution of the Constitution 

In the Concessions of West Jersey of 1677 the same 
idea of an assembly elected by the people is continued, 
with no governor or governor's council added to it. 
The commission of New Hampshire of 1680 also has 
an elective assembly. The Pennsylvania frame of April 
2, 1683, introduces a reaction by taking away from this 
now well-established assembly the right to originate 
laws and giving this originating right to an upper house. 
But in the Massachusetts charter of 1 69 1 the form of 
governor, governor's council, and deputies of the peo- 
ple appears again ; and in the frame of 1696 Pennsyl- 
vania restores to her assembly the right to originate 
laws. The Georgia charter of 1732 produces an ap- 
parent reaction by giving the law-making power to a 
corporation. But this, as already shown, was the result 
of very peculiar circumstances, and need not be con- 
sidered. 

Coming to the constitutions of 1776, we find them 
accepting the old colonial assembly as their principal 
legislative body ; and in the first of these constitutions, 
that of New Hampshire, it is called the house of repre- 
sentatives, the name afterwards adopted for it in the 
National Constitution. As we pass on through these 
constitutions of 1776 we find it appearing in them all, 
— sometimes called the assembly, sometimes the house 
of delegates, but, as we near the end, more and more 
often called the house of representatives, until, in the 
simplest language of only a few lines, the old colonial 
assembly, over which the charters were often so wordy, 
becomes the House of Representatives of Congress in 
the National Constitution. 

120 



Evolution from the Charters 

The council resident in England to be elected by a majority 
vote of the company, and said council to make the laws. (Vir- 
ginia Charter of 1609,) 

The treasurer and the whole company to meet four times a 
year to make the laws, (Virginia Charter of 1611-12.) 

The law-making power given to the assistants and the whole 
body of the freemen of the company. (Massachusetts Charter 
of 1629.) 

The law-making power given to the proprietor and the freemen 
or their delegates. (Maryland Charter of 1632.) 

The governor, the magistrates, and the deputies elected by the 
towns to constitute a general court to make the laws. (Funda- 
mental Orders of Connecticut, 1638.) 

In 1643 the inhabitants of Rhode Island were given a patent 
which allowed them to rule themselves by such form of govern- 
ment as the majority of them should find most suitable to their 
condition. 

The governor, deputy-governor, assistants, and the deputies 
from the towns to constitute a general assembly to make the laws. 
(Connecticut Charter of 1662.) 

The above provision is repeated in the Rhode Island charter 
of 1663. 

The Carolina charter of„i663 copies the provision given above 
from the Maryland charter of 1632. 

The governor, council, and deputies of the people to constitute 
a general assembly to make the laws. (Concessions of East Jer- 
sey, 1665.) 

The Carolina charter of 1665 copies the provision given above 
from the Maryland charter of 1632. 

Three divisions of the nobility and the deputies of the free- 
holders to constitute a parliament to make the laws. (Locke's 
Carolina Constitution of 1669.) 

One hundred deputies elected by the people to constitute the 
general assembly. (Concessions of West Jersey of 1677,) 

The president and council to decide how many deputies elected 
by the people shall constitute the general assembly. (Commis- 
sion for New Hampshire of 1680.) 

121 



Evolution of the Constitution 

The Pennsylvania charter of 1681 copies the provision given 
above from the Maryland charter of 1632. 

The general assembly given power only to accept or reject the 
bills of the upper house or make suggestions for their amend- 
ment. (Pennsylvania Frame of April 2, 1683.) 

The above provision is repeated in the Pennsylvania Frame of 
1683, with some changes as to the number of members of the 
assembly and the time of meeting. 

The governor, assistants, and the deputies of the towns to con- 
stitute the general assembly. (Massachusetts Charter of 1691.) 

The general assembly of Pennsylvania allowed to originate 
bills. (Pennsylvania Frame of 1696.) 

Deputies of the people to constitute an assembly. (Pennsyl- 
vania Charter of Privileges of 1701.) 

The law-making power given to the general meeting of the 
corporation. (Charter of Georgia of 1732.) 

The lower branch of the legislature elected by the people to 
be called the house of representatives. (New Hampshire Consti- 
tution of 1776.) 

The lower branch of the legislature to consist of representa- 
tives of the people. (South Carolina Constitution of 1776.) 

The lower branch of the legislature, called the house of dele- 
gates, elected by the people. (Virginia Constitution of 1776.) 

The lower house to consist of representatives of the people. 
(New Jersey Constitution of 1776.) 

The lower house called the house of assembly. (Delaware 
Constitution of 1776.) 

A single legislative body called the house of representatives 
elected by the people. (Pennsylvania Constitution of 1776.) 

The lower house called the house of delegates^ (Maryland 
Constitution of 1776.) 

The lower house called the house of commons. (North Caro- 
lina Constitution of 1776.) 

A single legislative body to consist of representatives of the 
people. (Georgia Constitution of 1777.) 

The lower house called the assembly and composed of repre- 
sentatives of the people. (New York Constitution of 1777.) 

122 



Evolution from the Charters 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

The lower house to be called the house of representatives, and 
to consist of one from each town. (Rejected Constitution of Mas- 
sachusetts of 1778.) 

The lower house, to be called the house of representatives, to 
be chosen every second year. (South Carolina Constitution of 
1778.) 

The house of representatives to consist of deputies from the 
towns. (Rejected Constitution of New Hampshire of 1778.) 

The lower house to consist of representatives from the towns. 
(Massachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

A single legislative body, called the house of representatives, 
to be chosen annually. (Vermont Constitution of 1786.) 

Suggestion of a legislature, to be called the first branch of the 
national legislature, to be composed of representatives of the 
people. (Randolph's Plan, 1787.) 

Suggestion of a national legislative body, chosen by the people 
of the several States, to be called the house of delegates. (Pinck- 
ney's Plan, 1787.) 

The House of Representatives to be elected by the people 
every second year. (The Constitution.) 

4. The Senate. 

The line of development which led to the House of 
Representatives began, as was shown in the preceding 
section, in the Virginia charter of 1609. The Senate's 
line of development began apparently in the next docu- 
ment, — the Virginia charter of 161 1— 12. 

This charter created what may be called an executive 
council, which was to sit every week and manage the 
casual and ordinary affairs, very much as a governor or 
any other executive officer might manage them. This 

123 



Evolution of the Constitution 

body certainly bore a strong resemblance to the gover- 
nor's council, which soon afterwards appeared ; and not 
infrequently in the colonial period this form of an ex- 
ecutive council, without any governor or with a governor 
merely subservient to the council, was made use of 

But in the next document, the Massachusetts charter 
of 1629, the council appears as a body of persons to 
advise and assist the governor, a form in which it con- 
tinued, with variations and developments, for over a hun- 
dred years. In this Massachusetts charter of 1629, the 
assistants, as the council is called, are to sit with the 
whole body of the freemen to enact laws. In the next 
document, the Fundamental Orders of Connecticut of 
1638, the freemen, instead of meeting in a body to enact 
laws, send delegates to a general assembly, and the 
council, in this instance called magistrates, is a part of 
this assembly. 

The council as a part of the assembly, sitting and 
voting with it, is now well established as a regular de- 
partment of colonial government, and we find it in the 
Connecticut charter of 1662, the Rhode Island charter 
of 1663, and the Concessions of East Jersey of 1665. 
But in Locke's Carolina constitution of 1669 we see 
for the first time a disposition to make the council a 
separate or upper house of the legislature ; and Locke 
carried it so far that he gave to the council, as an upper 
house, the sole privilege of originating legislation, — an 
unfortunate idea, which was followed by William Penn 
in one of his frames of government for Pennsylvania, 
and not eradicated from American minds for many 
years. 

124 



Evolution from the Charters 

In 1674, five years after Locke's constitution, an 
amendment to the Concessions of East Jersey provided 
that the council should sit apart from the assembly, but 
avoided Locke's excess of giving it the right to originate 
legislation. But a few years afterwards, in the Pennsyl- 
vania Frame of 1683, Locke's excess is followed. The 
notion of making the council a separate and upper 
house having been once acquired, it seemed impossible 
to prevent it from running too far ; and in Pennsylvania 
the council was given so much control of the governor 
that he was a mere figure-head. 

The Pennsylvania Frame of 1683 had, however, the 
interesting development of dividing the members of 
the council into classes, so that one-third should retire 
from office each year, — a method adopted in some of 
the constitutions of 1776, and afterwards followed in the 
Senate of the National Constitution. 

In the next document, the Massachusetts charter of 
1 69 1, the council returns to its former function of sitting 
with the assembly, but a new and very interesting de- 
velopment appears for the first time. The council is to 
be chosen to represent certain localities or great districts, 
— to wit, Maine, New Plymouth, Massachusetts Bay, 
and the land between the Sagadahoc River and Nova 
Scotia, — ^which by their union were to form the new 
province of Massachusetts. Thus we have developed 
in the council the Senate's function of representing the 
States of a Union. 

Soon after this, in 1696, the right to originate legis- 
lation was taken away from the council in Pennsyl- 
vania ; so that we may say that in the year 1 700 the 

125 



Evolution of the Constitution 

American people had developed the governor's coun- 
cil into the two main functions of the modern senate, — 
namely, that it should be a separate or upper house, 
and^^that its members should represent certain large 
localities which by their union made up the common- 
wealth. 

So soon as we come to the constitutions of i T^jdy these 
two ideas become more firmly established. In the first 
of them, the constitution of New Hampshire, the coun- 
cil is a separate and upper house and represents the 
counties. In the Virginia constitution it represents dis- 
tricts larger than a single county, is called for the first 
time a senate, and also embodies the plan which first 
apj)eared in the Pennsylvania frame of 1683, of having 
a certain proportion of the members retire from office 
each year. 

In the Delaware constitution we find a slightly different 
plan of rotation, and in the New York constitution of 
1777 the same plan as in Virginia. The other State 
constitutions repeated the characteristics already estab- 
lished for an upper house, which was thus fully devel- 
oped before the close of the Revolution ; and when the 
National Constitution was framed, in 1787, the upper 
house, with its name senate, its representation of large 
localities, and its method of rotation, was transferred 
easily and naturally from the governments of the States 
to tl;ie new government of the Union. 

An executive council established to meet once a week for 
casual matters. (Virginia Charter of 1611-12.) 

The council called assistants, and sit with the freemen to make 
the laws. (Massachusetts Charter of 1629.) 

126 



Evolution from the Charters 

The council called magistrates, and a part of the general as- 
sembly. (Fundamental Orders of Connecticut of 1638.) 

The council called assistants, and a part of the general assem- 
bly. (Connecticut Charter of 1662.) 

The above provision is substantially repeated in the Rhode 
Island charter of 1663. 

The governor's council to sit with the general assembly. (Con- 
cessions of East Jersey of 1665.) 

The grand council an upper house and to originate legislation, 
(Locke's Carolina Constitution of 1669.) 

The governor's council to sit apart from the representatives. 
(Amendment in 1674 to the Concessions of East Jersey of 1665 ; 
I N. J. Arch., 175.) 

President and his council to rule the colony. (Commission for 
New Hampshire of 1680.) 

The governor's council to be elected by the freemen, to origi- 
nate legislation, and to be divided into classes so that one-third 
part may be elected each year. (Pennsylvania Frame of April 2, 
1683.) 

The above provision is repeated in the Pennsylvania Frame 
of 1683, except that the number of the council is reduced to 
eighteen. 

The governor' s council to be elected yearly by the general 
assembly and to represent certain districts (Massachusetts Bay, 
New Plymouth, Maine, and the territory between Sagadahoc 
River and Nova Scotia), and to sit in the general assembly. 
(Massachusetts Charter of 1691.) 

Right to originate legislation taken away from the council in 
Pennsylvania. (Pennsylvania Frame of 1696.) 

Council not to be a court, and apparently abolished, but was 
afterwards regularly appointed by the proprietors. (Pennsylvania 
Charter of Privileges of 170 1.) 

An executive council established for Georgia. (Georgia Char- 
ter of 1732.) 

The council to be appointed by the house of representatives to 
represent the counties and be an upper house. (New Hamp- 
shire Constitution of 1776.) 

127 



Evolution of the Constitution 

The council to be elected by the general assembly, and to be 
an upper house. (South Carolina Constitution of 1776.) 

A senate representing districts of the State, to be elected by 
the districts, and to be divided into classes so that one-fourth 
may be elected each year. (Virginia Constitution of 1776.) 

A senate representing the counties and elected by the counties. 
(New Jersey Constitution of 1776.) 

A senate representing the counties and elected by the counties. 
(Delaware Constitution of 1776.) 

A senate representing the counties and the towns of Balti- 
more and Annapolis, to be elected by electors chosen by the 
counties and the two towns. (Maryland Constitution of 
1776.) 

A senate representing the counties and elected by the counties. 
(North Carolina Constitution of 1776.) 

An executive council representing the counties and chosen by 
the house of representatives to suggest amendments to the laws 
passed by the house of representatives. (Georgia Constitution 
of 1777.) 

A senate chosen by certain large districts to hold office four 
years, and a fourth part to be elected each year. (New York 
Constitution of 1777.) 

A senate chosen by districts. (Rejected Constitution of Mas- 
sachusetts of 1778.) 

A senate chosen by districts. (South Carolina Constitution of 
1778.) 

A council chosen by counties. (Rejected Constitution of New 
Hampshire of 1778.) 

A senate chosen by districts. (Massachusetts Constitution of 
1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

A senate to be elected by the lower house from persons nomi- 
nated from each State. (Randolph's Plan, 1787.) 

A senate chosen by the lower house to represent each State, 
and to be divided into classes so that the terms of service shall 
not expire at the same time. (Pinckney's Plan, 1787.) 

128 



Evolution from the Charters 

A senate composed of two senators from each State elected by 
the legislatures of the States, and divided into classes so that one- 
third may be chosen every second year. (The Constitution.) 

5. Presiding Officer of the Senate. 

In colonial times, when the council was a body to 
assist and advise the governor, he was naturally the pre- 
siding officer of its proceedings, without any provision 
to that effect in the charter. But when the New Jersey 
constitution of 1776 was framed, in which the council 
was an upper house of the legislature, it was thought 
necessary, for the first time, to provide it in a formal 
way with a chairman ; and the governor was made its 
president, with the privilege given the council to choose 
a vice-president, who should act in the absence of the 
governor. 

The New York constitution of 1777 made the Heu- 
tenant-governor of the State the presiding officer of the 
senate, with a casting vote in case of an equal division ; 
and this plan was followed in the National Constitution, 
which makes the Vice-President of the United States 
president of the Senate, but with no vote " unless they 
be equally divided." 

Between the time of the New York constitution of 
1777 and the National Constitution of 1787 the rejected 
constitution of Massachusetts of 1778 and the New 
Hampshire constitution of 1784 both gave the presi- 
dency of the senate to the governor. 

" That the Council and Assembly jointly, at their first meeting 
after each annual election, shall, by a majority of votes, elect 
some fit person within the Colony, to be Governor for one year, 
9 129 



Evolution of the Constitution 

who shall be constant President of the Council, and have a cast- 
ing vote in their proceedings ; and that the Council themselves 
shall choose a Vice-President who shall act as such in the ab- 
sence of the Governor." (New Jersey Constitution of 1776.) 

' ' Such lieutenant governor shall by virtue of his office be 
president of the Senate, and upon an equal division have a cast- 
ing voice in their decisions." (New York constitution of 1777.) 

" The governor shall be president of the Senate." (Rejected 
Constitution of Massachusetts of 1778.) 

' ' The president of the state shall preside in the senate, shall 
have a vote equal with any other member ; and shall also have 
a casting vote in case of a tie." (New Hampshire Constitution 
of 1784.) 

' ' The vice president of the United States shall be president 
of the senate, but shall have no vote unless they be equally 
divided." (The Constitution.) 

6. Freedom of Debate. 

Freedom of speech in a legislative body seems not to 
have needed any safeguards in colonial times, for only 
one of the documents, the Concessions of West Jersey 
of 1669, contains any provision for it. If the right had 
been much interfered with by the governors or the Crown, 
it is probable that some of the constitutions, Hke those 
of Pennsylvania and Connecticut, which were made by 
the people themselves, would have had a provision for 
its protection. The right was secured for the British 
Parliament by a statute passed in the first year of the 
reign of William and Mary. 

The Concessions of West Jersey, however, miss the 
important point in the right, and merely provide that 
every member of the assembly shall have liberty 
of speech, which is too general. The protection the 



Evolution from the Charters 

member needs is that he shall not be called to account 
by any power outside of the legislature for what he says 
at a meeting of the legislature. The legislature itself 
may discipline him for improper conduct or language 
at its meeting, but no outside power should be able to 
punish him. This was provided for in the Maryland 
constitution of 1776, as in the statute of William and 
Mary, and, after passing through five or six documents, 
the provision appeared in the Constitution. It is one 
of the few provisions that can be traced directly to the 
forms of the British government. 

* ' That in every general free assembly every respective mem- 
ber hath liberty of speech." (Concessions of West Jersey, 1669.) 

"That freedom of speech and debates, or proceedings in the 
Legislature, ought not to be impeached in any other court or 
judicature." (Maryland Declaration of Rights of 1776.) 

" Freedom of speech and debate in Congress shall not be im- 
peached or questioned in any court or place out of Congress." 
(Articles of Confederation, 1778.) 

" Freedom of debate and speech shall be allowed in Congress, 
nor shall anything done in Congress be impeached or questioned 
out of it." (Drayton's Articles of Confederation, 1778.) 

' ' The freedom of deliberation, speech, and debate, in either 
house of the legislature, is so essential to the rights of the people, 
that it cannot be the foundation of any accusation or prosecution, 
action or complaint, in any other court or place whatsoever." 
(Massachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

The Vermont constitution of 1786 repeats the provision given 
above from the Massachusetts constitution of 1780. 

"Freedom of speech and debate in the Legislature shall not 
be impeached, or questioned, in any place out of it." (Pinck- 
ney's Plan, 1787.) 

131 



Evolution of the Constitution 

• ' For any speech or debate in either house, they [senators 
and representatives] shall not be questioned in any other place." 
(The Constitution.) 

7. Privilege from Arrest. 

The colonial charters and constitutions contained no 
provision protecting a member of the legislature from 
arrest. It seems to have been assumed that the privi- 
lege existed as a matter of course ; but in at least one 
instance it was violated. 

In 1705, Biles, a member of the Pennsylvania assem- 
bly, was arrested during the session of the assembly for 
speaking contemptuously of the governor. He pleaded 
his privilege as a member, but the court overruled the 
plea. The assembly passed a resolution condemning 
the sheriff and judges for violating the privilege of the 
house, and the governor thereupon called the assembly 
before him and, after addressing them in a most abusive 
speech, adjourned them. There seems to have been no 
definite settlement of the question on this occasion, but 
the general opinion was probably in favor of the exist- 
ence of the privilege, for the constitutions of 1776 are 
usually silent about it. 

" The members of Congress shall be protected in their persons 
from arrests and imprisonments during the time of their going to 
and from, and attendance on, Congress, except for treason, felony, 
or breach of the peace." (Articles of Confederation, 1778.) 

' ' The delegates shall be protected in their persons from arrests 
and imprisonments, except for treason, felony, or breach of the 
peace." (Drayton's Articles of Confederation, 1778.) 

"And no member of the house of representatives shall be 
arrested, or held to bail on mesne process, during his going unto, 

132 



Evolution from the Charters 

returning from, or his attending the general assembly." (Massa- 
chusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

"The members of both houses shall, in all cases, except for 
treason, felony, or breach of the peace, be free from arrest during 
their attendance on Congress, and in going to and returning from 
it." (Pinckney's Plan, 1787.) 

"They [senators and representatives] shall in all cases, ex- 
cept treason, felony, and breach of the peace, be privileged from 
arrest during their attendance at the session of their respective 
houses, and in going to and returning from the same." (The 
Constitution.) 

8. MONEY-BlLLS. 

The principle that bills for raising money from the 
people should originate in that part of the legislature 
which most fully represented the people — in England 
the House of Commons — was familiar to the colonists, 
and it may be admitted that their ideas on this subject 
were taken directly from the forms of the British 
government. 

None of the colonial charters or constitutions con- 
tained any clause specially securing this right, but the 
colonists always insisted that it belonged to them in all 
their legislative bodies as a matter of course because 
they were free-born Englishmen. In Pennsylvania, es- 
pecially, they contended for it against their proprietors 
and deputy-governors with the greatest persistency, and 
insisted on the right in its fullest extent, — namely, that 
money-bills should not only originate in the lower house 
of assembly, but should also be either accepted or re- 
jected by the council or upper house without any attempt 
to amend them. Some of the constitutions of 1776 

T^33 



Evolution of the Constitution 

adopted this extreme view, which was modified in the 
National Constitution by allowing the Senate to propose 
amendments, as in the case of other bills. 

"That all bills, resolves, or votes for raising, levying, and 
collecting money originate in the house of representatives." 
(New Hampshire Constitution of 1776,) 

" All money-bills for the support of government shall originate 
in the general assembly, and shall not be altered or amended by 
the legislative council, but may be rejected by them." (South 
Carolina Constitution of 1776.) 

" All laws shall originate in the house of delegates, to be ap- 
proved of or rejected by the senate, or to be amended with the 
consent of the house of delegates ; except money-bills, which in 
no instance shall be altered by the senate, but wholly approved 
or rejected." (Virginia Constitution of 1776.) 

' ' That the council shall not prepare or alter any money-bill, 
which shall be the privilege of the assembly." (New Jersey 
Constitution of 1776.) 

" All money-bills for the support of government shall origi- 
nate in the house of assembly, and may be altered, amended, or 
rejected by the legislative council." (Delaware Constitution of 
1776.) 

"The house of delegates may originate all money-bills." 
(Maryland Constitution of 1776.) 

'• Excepting bills and resolves levying and granting money or 
other property of the State, which shall originate in the house 
of representatives only, and be concurred or non-concurred in 
whole by the senate." (Rejected Constitution of Massachusetts 
of 1778.) 

' ' That all money-bills for the support of the government shall 
originate in the house of representatives, and shall not be altered 
or amended by the senate, but may be rejected by them." 
(South Carolina Constitution of 1778.) 

"And all acts, resolves, or votes, except grants of money, 
lands, or other things, may originate in either house ; but such 

134 



Evolution from the Charters 

grants shall originate in the house of representatives only." 
(Rejected Constitution of New Hampshire of 1778.) 

"All money-bills shall originate in the house of representa- 
tives ; but the senate may propose or concur with amendments, 
as on other bills." (Massachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

" All money-bills of every kind shall originate in the house of 
delegates, and shall not be altered by the senate." (Pinckney's 
Plan, 1787.) 

' ' All bills for raising revenue shall originate in the house of 
representatives ; but the senate may propose or concur v/ith 
amendments, as on other bills." (The Constitution.) 

9. Adjournment of Congress. 

The adjournment of a legislative body, either of its 
own volition or by the action of a king or governor, is 
a function requiring very careful regulation, because the 
power to adjourn may be the bulwark of a people's 
liberties or the means of inflicting the greatest tyranny 
upon them. 

If a king or a governor may keep an assembly sitting 
as long as he pleases, or dismiss them when he pleases, 
he has the means of wearing out their patience, forcing 
them to pass the legislation he wants, or preventing 
them from passing any legislation. On the other hand, 
a legislature may sit too long and become a public 
menace, or, if it consists of two branches, one may 
adjourn in order to defeat the intentions of the other. 

It may also be very important, under certain circum- 
stances, for a legislature to have the power of sitting 
indefinitely. At the time of the Revolution, a party 
in the Pennsylvania legislature, wishing to destroy the 

135 



Evolution of the Constitution 

government of the commonwealth as it then existed, 
absented themselves every day, so that a quorum could 
not be formed. The minority attempted to hold meet- 
ings, but, as they could not pass a valid act, the legis- 
lature finally perished, and there was a revolution in the 
government. If the minority had had power to adjourn 
from day to day and to compel the attendance of absent 
members, they could have continued the life of the 
legislature until a quorum had been collected. 

The colonists had much experience with all these 
questions, and were greatly troubled by some of them ; 
and the clauses finally adopted in the National Consti- 
tution were as delicate a balancing of power between the 
President and Congress and between the two branches 
of Congress as could have been devised. 

The summary given below from the charters and con- 
stitutions shows that in 1638 the right of the legislature 
to adjourn when it pleased was fully conceded in the 
Fundamental Orders of Connecticut of that year, which 
also gave the governor and his council power to call 
the legislature together in an emergency, — a power 
afterwards given to the President in the National Con- 
stitution. After that the legislature's power to adjourn 
was occasionally curtailed and given to the governor or 
the king. In 1754, in Franklin's plan of union, a sort 
of balancing of the power between the executive and 
the legislature first appears. The executive may ap- 
parently adjourn them, but not for more than six weeks 
without their consent or the special command of the 
Crown ; nor can they be compelled to sit longer than 
six weeks except by the same consent or command. 

136 



Evolution from the Charters 

This is also the first appearance of a provision to prevent 
an assembly from being compelled to sit too long. 

In the New Hampshire constitution of 1776 a pro- 
vision appears to prevent one branch of a legislature 
from adjourning without the consent of the other ; and 
this is repeated in various forms until it appears in the 
National Constitution. 

In the same year, 1776, the South Carolina constitu- 
tion provides that the executive may call the legislature 
before the time to which they stand adjourned, when 
urgent necessity requires it. This is also repeated until 
it appears in the National Constitution, and it is a pro- 
vision often made use of and considered of much 
value. 

In the New Jersey constitution of i 'j'j^ appeared the 
provision that the two branches must meet at the same 
time. The Delaware constitution of 1776 provides that 
they must meet at the same time and place ; and the 
Maryland constitution of the same year provides that, 
if the two branches disagree as to the time to which 
they shall adjourn, the governor may decide the ques- 
tion, — both of which provisions are to be found in the 
National Constitution. 

General court adjourned only by consent of majority. Gov- 
ernor and council may call the legislature for a special occasion. 
(Fundamental Orders of Connecticut, 1638.) 

Assembly may meet and adjourn at pleasure. (Concessions of 
East Jersey, 1665.) Repealed, and the right to adjourn given to 
the governor and council, in 1672. 

The palatine's court (consisting of the palatine and eight 
others) may dissolve the parliament at pleasure. (Locke's Caro- 
lina Constitution of 1669.) 

137 



Evolution of the Constitution 

Assembly may meet and adjourn at pleasure. (Concessions 
of West Jersey, 1677.) 

Governor and council may adjourn the assembly. (Pennsyl- 
vania Frame of April 2, 1683.) 

Governor may adjourn the assembly. (Massachusetts Charter 
of 1691.) 

Governor and council may adjourn the assembly. (Pennsyl- 
vania Frame of 1696.) 

Assembly may adjourn at pleasure. (Pennsylvania Charter of 
Privileges, 1701.) 

Assembly may adjourn for two days, but not longer without 
the consent of the governor. (Explanatory Charter of Massachu- 
setts of 1726.) 

Grand council not to be adjourned or continued sitting longer 
than six weeks without their own consent or the special command 
of the Crown. (Franklin's Plan of 1754.) 

Council not to be adjourned or continued sitting longer than 
six weeks without their own consent. (Hutchinson's Plan of 

1754.) 

Neither branch of the legislature to adjourn longer than from 
Saturday to Monday without the consent of the other. (New 
Hampshire Constitution of 1776.) 

Either branch of the legislature may adjourn at pleasure, but 
the president, when necessary, may call them before the time to 
which they stand adjourned. Sixty-nine members to be a quorum, 
but the speaker and any seven members may adjourn from day 
to day. (South Carolina Constitution of 1776.) 

The above is substantially repeated in the Virginia constitu- 
tion of 1776. 

The assembly may adjourn at pleasure, but the council must 
meet at the same time as the assembly. (New Jersey Constitu- 
tion of 1776.) 

Either branch of the legislature may adjourn at pleasure, but 
the president may, with the advice of his council or on applica- 
tion of a majority of either house, call them before the time to 
which they stand adjourned, and the two houses must sit at the 
same time and place. (Delaware Constitution of 1776.) 

13S 



Evolution from the Charters 

Legislature may adjourn at pleasure, but the president, with 
the council, may call them before the time to which they stand 
adjourned. (Pennsylvania Constitution of 1776.) 

Either branch of the legislature may adjourn at pleasure, but 
if they adjourn to different days the governor may appoint some 
day between, and the governor may, with the advice of his coun- 
cil, call them before the time to which they shall in any manner 
be adjourned. (Maryland Constitution of 1776,) 

Either branch of the legislature may adjourn at pleasure. 
(North Carolina Constitution of 1776.) 

Governor, with advice of council, may call assembly before the 
time to which they stand adjourned. (Georgia Constitution of 

Governor may convene both branches on extraordinary occa- 
sions and may prorogue them for not more than sixty days in a 
year, and neither branch may adjourn for more than two days 
without the consent of the other. (New York Constitution of 

The Vermont constitution of 1777 repeats the provision from 
the Pennsylvania constitution of 1776. 

The council may at their pleasure require the governor to ad- 
journ them, but neither branch shall adjourn itself for more than 
two days at one time. The governor may call the legislature to- 
gether, if necessary, before the time to which they stand adjourned. 
(Rejected Constitution of Massachusetts of 1778.) 

The legislature may adjourn at pleasure, but neither branch of 
it may adjourn for longer than three days without the consent of 
the other. The governor may, with the advice of the council, call 
the legislature before the time to which they stand adjourned. 
(South Carolina Constitution of 1778.) 

Neither branch of the legislature may adjourn for more than 
two days without the consent of the other, and the president, with 
the advice of three or more of the council, may call the legislature 
before the time to which they stand adjourned. (Rejected Con- 
stitution of New Hampshire of 1778.) 

The legislature may at their pleasure require the governor to 
adjourn them. The House of Representatives may adjourn for 

139 



Evolution of the Constitution 

not more than two days at a time, and, in case of disagreement 
between the two branches with regard to adjournment, the gov- 
ernor may, with the advice of the council, adjourn them not ex- 
ceeding ninety days, and he may in cases of necessity call them 
before the time to which they stand adjourned. (Massachusetts 
Constitution of 1780.) 

The Congress may adjourn to any time within the year so that 
no period of adjournment be longer than six months. (Articles 
of Confederation, 1778.) 

The above is substantially repeated in Drayton's Articles of 
Confederation, 1778. 

The provision of the Massachusetts constitution of 1780 is sub- 
stantially repeated in the New Hampshire constitution of 1784. 

Neither house, without the consent of the other, shall adjourn 
for more than days nor to any place but where they are 

sitting. (Pinckney's Plan, 1787.) 

"The Congress shall assemble at least once in every year. . . . 
A majority of each [house] shall constitute a quorum to do 
business ; but a smaller number may adjourn from day to day, 
and may be authorized to compel the attendance of absent mem- 
bers. . . . Neither house during the session of congress shall, 
without the consent of the other, adjourn for more than three days 
nor to any other place than that in which the two houses shall be 
sitting. . . . He [the President] may, on extraordinary occasions, 
convene both houses or either of them, and, in case of disagree- 
ment between them with respect to the time of adjournment, he 
may adjourn them to such time as he shall think proper." (The 
Constitution.) 

10. War Power. 

The power to declare war and make peace is a most 
important function of government ; for on it may de- 
*pend the existence or honor of the nation. Where the 
power should be lodged, whether with the executive 
or with the legislature, or with both, has been a much 
debated question in our history. 

140 



Evolution from the Charters 

In the early colonial governments it was often given 
to everybody. In several of the charters, as the sum- 
mary shows, the whole company in general, and the 
governor and every other officer in particular, seem to 
have been endowed with authority to make war at any 
moment. This was natural enough, because in primi- 
tive governments in wild countries the war power is 
often the all-important function which overshadows all 
others. 

As time went on, however, there seems to have been 
considerable doubt in the minds of constitution-framers 
as to who should be responsible for war and peace. 
The tendency to give the legislature a share in the re- 
sponsibility is first shown in the Rhode Island charter 
of 1663. In the Concessions of East Jersey of 1665 
the legislature alone has the power, and this method 
was adopted in the National Constitution, where the 
war power is given to Congress alone. But between 
the Concessions of East Jersey and the Constitution it 
vacillated, sometimes being given to the governor alone, 
and sometimes to the governor and the legislature. 

The fundamental principle underlying the grant of 
the power seems to be that it should be given to what- 
ever body is, in the fullest sense of the word, the nation. 
In England it was given to the king because he was the 
nation ; and in the United States, where the people are 
the nation, it is given to Congress, which represents the 
people. 

But, as the President controls the army and navy and 
the action of diplomatic agents, he can easily, by an 
overt act, commit the country to a war which Congress 

141 



Evolution of the Constitution 

would be bound to accept ; as was done in the case of 
our war with Mexico. In theory Congress has the 
power, but the real power is with one man as fully as it 
was in Sir Walter Raleigh's charter of 1584. 

War power given to Sir Walter Raleigh. (Sir Walter Raleigh's 

Charter, 1584.) 

Given generally to the two colonies of Virginia. (Virginia 

Charter of 1606.) 

Given generally to the company, governor, and other officers. 

(Virginia Charter of 1609.) 

Given generally to council, governor, and other officers. 

(Charter of New England of 1620.) 

Given generally. (Massachusetts Charter of 1629.) 

Given to the proprietor. (Maryland Charter of 1632.) 

To the proprietor. (Grant of Maine of 1639.) 

To the governor and officers. (Connecticut Charter of 

1662.) 

To the governor, assistants, and general assembly ; and, when 

the general assembly is not sitting, to the governor and assistants. 

(Rhode Island Charter of 1663.) 

To the proprietor. (Carolina Charter of 1663.) 

To the general assembly. (Concessions of East Jersey, 1665.) 

To the proprietor. (Carolina Charter of 1665.) 

To the grand council. (Locke's Constitution of 1669.) 

To the council. (Commission for New Hampshire of 1680.) 

To the proprietor. (Pennsylvania Charter of 1681.) 

To the governor. (Massachusetts Charter of 1691.) 

To the corporation. (Georgia Charter of 1732.) 

To the president-general and grand council. (Franklin's Plan 

of Union of 1754.) 

To the president and council. (Hutchinson's Plan of 1754.) 
To Congress. (Franklin's Articles of Confederation, 1775.) 
To the president and the legislature. (South Carolina Consti- 
tution of 1776.) 

To the governor. (South Carolina Constitution of 1778.) 

142 



Evolution from the Charters 

To Congress ; but a State may engage in war when actually 
invaded. (Articles of Confederation, 1778.) 

To Congress. (Drayton's Articles of Confederation, 1778.) 
To the governor. (Massachusetts Constitution of 1780.) 
To the governor. (New Hampshire Constitution, 1784.) 
To the Senate. (Pinckney's Plan, 1787.) 
To Congress. (The Constitution.) 

II. Speakership and Procedure of Congress. 
A legislative body would seem to have a natural and 
inherent right to judge of the qualifications and elections 
of its own members, appoint its own speaker and other 
officers, and regulate its own methods of procedure, 
after the manner of the British House of Commons. 
The charters granted by the Crown made no regulation 
of these matters, and in some of the Colonies the gov- 
ernor claimed that his approval was necessary before 
the speaker elected by the assembly could assume his 
office. There were several contests in Massachusetts 
on this question, and in the end the Explanatory Char- 
ter of 1726 confirmed the necessity of the governor's 
consent in the election of a speaker. (Follett's Speaker 
of the House of Representatives, 12.) But whenever 
in colonial times the people prepared a constitution for 
themselves free from interference by the Crown, they 
usually thought it necessary to provide for the exercise 
of this right by the legislature, and the constitutions of 
1776 carried on the development to the National Con- 
stitution. 

" It is ordered and decreed, that the deputyes thus chosen shall 
haue power and liberty to appoynt a tyme and a place of meeting 

143 



Evolution of the Constitution 

togather before any Generall Courte to aduise and consult of all 
such things as may concerne the good of the publike, as also to 
examine their owne Elections, whether according to the order, 
and if they or the gretest p'^te of them find any election to be 
illegall they may seclud such for p^sent fro their meeting, and 
returne the same and their resons to the Courte ; and if yt proue 
true, the Courte may fyne the p''ty or p'^tyes so intruding and the 
Towne, if they see cause, and giue out a warrant to goe to a newe 
election in a legall way, either in p^'te or in whole. ... It is Or- 
dered, sentenced and decreed, that euery Generall Courte, except 
such as through neglecte of the Gou'^nor and the greatest p''te of 
Magestrats the Freemen themselves doe call, shall consist of the 
Gouernor, or some one chosen to moderate the Court, and 4 other 
Magestrats at lest, w'** the mayor p'te of the deputyes of the 
seuerall Townes legally chosen ; and in case the Freemen or 
mayor p'te of the, through neglect or refusall of the Gouernor 
and mayor p'te of the magestrats, shall call a Courte, y^ shall 
consist of the mayor p'^te of Freemen that are p''sent or their 
deputyes, w^'* a Moderator chosen by the." (Fundamental Orders 
of Connecticut, 1638.) 

* ' All questions to be determined by both or either of them 
[council or assembly] that relate to . . . choice of officers . . . 
shall be resolved and determined by the ballot. * ' (Pennsylvania 
Frame, April 2, 1683.) 

"And the representatives so chosen either for council or as- 
sembly shall yield their attendance accordingly and be the sole 
judges of the regularity or irregularity of the elections of their 
respective members." (Pennsylvania Frame of 1696.) 

' ' Which assembly shall have power to chuse a speaker and 
other their officers, and shall be judges of the qualifications and 
elections of their own members." (Pennsylvania Charter of 
Privileges of 1701.) 

' ' Each house shall choose its own speaker, appoint its own 
officers, settle its own rules of proceeding." (Virginia Constitu- 
tion of 1776.) 

" That the assembly, when met, shall have power to choose 
a speaker and other their officers ; to be judges of the qualifica- 

144 



Evolution from the Charters 

tions and elections of their own members." (New Jersey Consti- 
tution of 1776.) 

' ' Each house shall choose its own speaker, appoint its own 
officers, judge of the qualifications and elections of its own mem- 
bers, settle its own rules of proceedings. They may also sev- 
erally expel any of their own members for misbehavior, but not 
a second time in the same sessions for the same offence if re- 
elected." (Delaware Constitution of 1776.) 

"The house of representatives shall have power to choose 
their speaker, the treasurer of the state and their other officers, 
judge of the elections and qualifications of their own members. 
They may expel a member, but not a second time for the same 
cause." (Pennsylvania Constitution of 1776.) 

" That the house of delegates shall judge of the elections and 
qualifications of delegates. They may expel any member for a 
great misdemeanor, but not a second time for the same cause. 
Each house shall appoint its own officers and settle its own rules 
of proceeding." (Maryland Constitution of 1776.) 

' ' That the senate and house of commons, when met, shall 
each have power to choose a speaker and other their officers ; be 
judges of the qualifications and elections of their members." 
(North Carolina Constitution of 1776.) 

' ' The house shall choose its own speaker, appoint its own 
officers and settle its own rules of proceeding." (Georgia Con- 
stitution of 1777.) 

' ' That the assembly thus constituted shall choose their own 
speaker, be judges of their own members." (New York Consti- 
tution of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' The congress shall have power to make rules for regu- 
lating their proceedings." (Drayton's Articles of Confederation, 
1778.) 

" The senate and house of representatives shall be two sepa- 
rate and distinct bodies, each to appoint its own officers and settle 
its own rules of proceedings." (Rejected Constitution of Massa- 
chusetts of 1778.) 

10 ' 145 



Evolution of the Constitution 

' ' The council shall choose their president and the house of 
representatives shall choose their speaker. The council and 
house of representatives, respectively, shall determine all dis- 
puted elections of their own members and regulate their own 
proceedings." (Rejected Constitution of New Hampshire of 

1778.) 

"The house of representatives shall be the judge of the re- 
turns, elections, and qualifications of its own members, as pointed 
out in the constitution ; shall choose their own speaker, appoint 
their own officers, and settle the rules and order of proceeding in 
their own house." (Massachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1 780 is repeated in the New Hampshire constitution of 1 784. 

"They [the general assembly] shall have power to choose 
their speaker and other necessary officers, judge of the elections 
and qualifications of their own members ; they may expel mem- 
bers, but not for causes known to their constituents antecedent to 
their election." (Vermont Constitution of 1786.) 

' ' The house of delegates shall choose its own officers. The 
senate shall choose its own officers. The house of delegates 
shall be the judges of the election, returns, and qualifications of 
their members. In each house a majority shall constitute a 
quorum to do business. Both houses shall keep journals of their 
proceedings and publish them, except on secret occasions, and 
the yeas and nays may be entered thereon at the desire of one of 
the members present." (Pinckney's Plan, 1787.) 

' ' The house of representatives shall choose their speaker and 
other officers. . . . Each house shall be the judge of the elec- 
tions, returns, and qualifications of its own members. . . . 
Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the concurrence 
of two-thirds, expel a member. Each house shall keep a journal 
of its proceedings and from time to time publish the same, except- 
ing such parts as may in their judgment require secrecy ; and 
the yeas and nays of the members of either house on any ques- 
tion shall, at the desire of one-fifth of those present, be entered 
on the journal." (The Constitution.) 

^46 



Evolution from the Charters 

12. Impeachment. 

The first appearance of the power to remove and 
punish an officer of government for misconduct is in 
the Fundamental Orders of Connecticut of 1638, but it 
is not until we reach the Rhode Island charter of 1663 
that this power is called by its proper name, — impeach- 
ment 

The methods of trying the impeachment vary, but a 
strong tendency soon appears to have the assembly 
bring the impeachment and the council or senate try 
it In the Virginia constitution of 1776 the person 
convicted is to be disabled from holding office, and 
may also be punished as the law shall direct, a descrip- 
tion of the method of punishment which had not ap- 
peared before. This was repeated in the Delaware 
constitution of 1776. In the New York constitution of 
1777 the manner of punishment was still more precisely 
detailed. Judgment in impeachment was to extend no 
farther than removal from office and disqualification 
from holding office under the State, but the guilty per- 
son might, in addition, be subject to indictment and 
punishment in the ordinary courts according to the laws 
of the land. In the Massachusetts constitution of 1780 
the senators are to be sworn to try the impeachment 
according to the evidence. All these provisions, in- 
cluding the requirement of a two-thirds vote to convict, 
were embodied in the National Constitution, and in 
almost the same language in which they had appeared 
in the earlier documents. 

The assembly is given power to deal with any magistrate or 

147 



Evolution of the Constitution 

other person for any misdemeanor. (Fundamental Orders of 
Connecticut, 1638.) 

The assembly may remove any officers of the company for 
misdemeanors. (Connecticut Charter of 1662.) 

The above is repeated in the Rhode Island charter of 1663. 

The general assembly may impeach, and the provincial council 
give judgment upon the impeachment. (Pennsylvania Frame of 
April 2, 1683.) 

The above is repeated in the Pennsylvania Frame of 1683. 

The assembly may impeach. (Pennsylvania Charter of 
Privileges, 1701.) 

The house of delegates may impeach the governor when out 
of office, and all others guilty of maladministration ; the impeach- 
ment to be tried in the general court according to law. When 
judges of the general court are impeached, the impeachment to 
be tried in the court of appeals. The guilty to be disabled from 
holding any office under government, and to be punished as the 
law shall direct. (Virginia Constitution of 1776.) 

The assembly may impeach and the council try the impeach- 
ment. (New Jersey Constitution of 1776.) 

The assembly may impeach the president when out of office, 
and all others guilty of maladministration, and the council try 
the impeachment. The guilty to be disabled from holding any 
office under government, and to be punished as the law shall 
direct. (Delaware Constitution of 1776.) 

The general assembly may impeach and the president and 
council try the impeachment. (Pennsylvania Constitution of 

1776.) 

The general assembly or grand jury may impeach. (North 
Carolina Constitution of 1776.) 

The assembly may impeach. (Georgia Constitution of 1777.) 
The assembly may impeach by a two-thirds vote ; and the 
impeachment be tried in a court, to consist of the president of 
the senate, the senators, the chancellor and judges of the 
supreme court ; no judgment, however, of the said court to be 
valid unless assented to by two-thirds of the members of the 
court. Judgment to extend no farther than removal from office 

148 



Evolution from the Charters 

and disqualification to hold office under the state. But the guilty- 
may, nevertheless, be subject to indictment and punishment ac- 
cording to the laws of the land. (New York Constitution of 

I777-) 

The Vermont constitution of 1777 repeats the provision of 
the Pennsylvania constitution of 1776. 

The house of representatives may impeach, and the impeach- 
ment be tried by a court composed of the governor and senate ; 
but no judgment to be valid unless assented to by two-thirds of 
the court. Judgment to extend no farther than removal from 
office and disqualification to hold office under the state. But 
the guilty may, nevertheless, be subject to indictment and punish- 
ment according to the laws of the land. (Rejected Constitution 
of Massachusetts of 1778.) 

The house of representatives may impeach by a two-thirds 
vote, and the impeachment be tried by a court composed of the 
senators and such judges as are not members of the house of 
representatives ; no judgment, however, to be valid unless as- 
sented to by two-thirds of the members of the court. (South 
Carolina Constitution of 1778.) 

The house of representatives may impeach, and the impeach- 
ment be tried by the senate. The senators to be sworn to try 
according to the evidence. Judgment to extend no farther than 
removal from office and disqualification to hold office under the 
state. But the guilty may, nevertheless, be subject to indictment 
and punishment according to the laws of the land. (Massachusetts 
Constitution of 1780.) 

The above provision is repeated in the New Hampshire 
constitution of 1784. 

The Vermont constitution of 1786 repeats the provision of 
the Pennsylvania constitution of 1776. 

Impeachments to be tried by the inferior tribunals with an 
appeal to the supreme tribunal. (Randolph's Plan, 1787.) 

The house of delegates may impeach, and the supreme court 
try the impeachment. (Pinckney's Plan, 1787.) 

"The house of representatives shall have the sole power of 
impeachment. . . . The senate shall have the sole power to try 

149 



Evolution of the Constitution 

all impeachments. When sitting for that purpose they shall be 
on oath or affirmation. When the president of the United States 
is tried, the chief-justice shall preside, and no person shall be 
convicted without the concurrence of two-thirds of the members 
present. Judgment in cases of impeachment shall not extend 
further than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit, under the United States ; 
but the party convicted shall nevertheless be liable and subject to 
indictment, trial, judgment, and punishment, according to law." 
(The Constitution.) 

13. The Executive. 

The first mention of an executive in any of the docu- 
ments is in the Virginia charter of 1609, where the 
council resident in England is to appoint governors and 
other officers for the colony. A governor or executive 
head of some sort would, of course, be necessary ; but 
in colonial times it was not infrequently supposed that 
the executive could be composed of several persons. 
Sometimes an executive committee or council was ap- 
pointed, and sometimes the governor's council was given 
such control over his actions that he was a mere 
cipher. 

This tendency reached its extreme in the Articles of 
Confederation of 1778, where, in the recess of Congress, 
an executive committee ruled the country. But many- 
headed executives of this sorjt were not a success, and, 
in spite of their suspicions of one-man power, the people, 
after long experience, discovered that for certain pur- 
poses the one-man power was the only effective method, 
and they soon learned to place upon it the limitations 
that were necessary for its proper restraint. 

In the summarj^ under this section the points to be 

150 



Evolution from the Charters 

noticed are the gradual appearance of a deputy- or 
lieutenant-governor, leading up to the Vice-President of 
the Constitution ; the gradual appearance of the name 
President to describe the executive ; the appointment of 
the executive, usually by the legislature or the Crown, 
until the time of the New York constitution of 1777, 
which gave the election of the governor to the people ; 
and the short terms for which governors or presidents 
were elected. There was also not infrequently a pro- 
vision to prevent their too frequent re-election. These 
provisions about terms and re-election suggest at once 
the four years' term given to the President under the 
Constitution, and the custom, that has become as fixed 
as if it were a part of the Constitution, of allowing no 
man to serve more than two terms. 

The council resident in England to appoint a governor for Vir- 
ginia. (Virginia Charter of 1609.) 

An executive council to meet once a week and to deal with 
casual matters. (Virginia Charter of 1611-12.) 

A governor and a deputy-governor to be elected by the free- 
men. (Massachusetts Charter of 1629.) 

A governor to be chosen by the general assembly every year. 
(Fundamental Orders of Connecticut, 1638.) 

A governor and a deputy-governor to be chosen by the general 
assembly every year. (Connecticut Charter of 1662.) 

The above provision is repeated in the Rhode Island charter 
of 1663. 

The governor to be appointed by the proprietors. (Concessions 
of East Jersey, 1665.) 

The eldest lord proprietor to be palatine. (Locke's Carolina 
Constitution of 1669.) 

The executive to consist of ten commissioners chosen by the 
assembly. (Concessions of West Jersey, 1677.) 

151 



Evolution of the Constitution 

The governor to be appointed by the proprietor. (Pennsyl- 
vania Frame of April 2, 1683.) 

The governor and lieutenant-governor to be appointed by the 
Crown, (Massachusetts Charter of 1691.) 

A president-general appointed by the Crown. (Franklin' s Plan 

of 1754.) 

A president appointed by the Crown. (Hutchinson's Plan, 

I754-) 

A president-general appointed by the Crown. (Galloway's 

Plan, 1774.) 

^ A president and vice-president chosen by the assembly and 
council. (South Carolina Constitution of 1776.) 

A governor to be chosen by joint ballot of both houses every 
year. (Virginia Constitution of 1776.) 

The governor to be chosen by the council and assembly and 
the vice-president by the council every year, (New Jersey Con- 
stitution of 1776.) 

A president to be chosen by joint ballot of both houses for 
three years. (Delaware Constitution of 1776.) 

The executive power to consist of a council of twelve and a 
president and vice-president chosen out of the council by the 
joint ballot of the assembly and council every year. (Pennsyl- 
vania Constitution of 1776,) 

The governor to be chosen by the joint ballot of both houses 
every year. (Maryland Constitution of 1776.) 

The governor to be chosen by joint ballot of both houses every 
year. (North Carolina Constitution of 1776.) 

The governor to be chosen by the representatives every year. 
(Georgia Constitution of 1777.) 

The governor to be elected by the freeholders every three 
years. (New York Constitution of 1777.) 

The executive council, governor, and lieutenant-governor to be 
elected by the freemen. (Vermont Constitution of 1777.) 

The governor and lieutenant-governor to be elected by the 
people every year. (Rejected Constitution of Massachusetts of 
1778.) 

The governor and lieutenant-governor to be elected by joint 

152 



Evolution from the Charters 

ballot of both houses every two years. (South Carolina Constitu- 
'tion of 1778.) 

An executive committee to be appointed by the congress of the 
confederation. (Articles of Confederation of 17.78.) 

"-The governorTo^"trg^TKosen by the people every year. (Massa- 
chusetts Constitution of 1780.) 

The above provision from the Massachusetts Constitution of 
1780 is repeated in the New Hampshire Constitution of 1784, ex- 
cept that the executive is called president. 

The executive council, the governor, and the lieutenant-gov- 
ernor to be chosen by the freemen every year. (Vermont Con- 
stitution of 1786.) 

A national executive to be chosen by the national legislature. 
(Randolph's Plan, 1787.) 

A president suggested as an executive. (Pinckney's Plan, 
1787.) 

The president and vice-president to be chosen by electors 
elected by the people of each State every four years. (The Con- 
, stitution.) 

14. Electors of the President. 

The following quotations are given to show how the 
method of electing the President was taken from the 
method of electing Senators in Maryland : 

' ' That the senate be chosen in the following manner : All 
persons, qualified as aforesaid to vote for county delegates, shall, 
on the first day of September, 1781, and on the same day in 
every fifth year forever thereafter, elect, viva voce, by a majority 
of votes, two persons for their respective counties (qualified as 
aforesaid to be elected county delegates) to be electors of the 
senate ; and the sheriff of each county, or, in case of sickness, 
his deputy (summoning two justices of the county, who are re- 
quired to attend, for the preservation of the peace), shall hold 
and be judge of the said election, and make return thereof, as 
aforesaid. And all persons, qualified as aforesaid, to vote for 
delegates for the city of Annapolis and Baltimore town, shall, on 

153 



Evolution of the Constitution 

the same first Monday of September, 1781, and on the same day 
in every fifth year forever thereafter, elect, viva voce, by a majority 
of votes, one person for the said city and town respectively, quali- 
fied as aforesaid to be elected a delegate for the said city and town 
respectively ; the said election to be held in the same manner as 
the election of delegates for the said city and town ; the right to 
elect the said elector, with respect to Baltimore town, to continue 
as long as the right to elect delegates for the said town. 

"That the said electors of the senate meet at the city of An- 
napolis, or such other place as shall be appointed for convening the 
legislature, on the third Monday in September, 1781, and on the 
same day in every fifth year forever thereafter, and they, or any 
twenty-four of them so met, shall proceed to elect, by ballot, either 
out of their own body or the people at large, fifteen senators (nine 
of whom to be residents on the western and six to be residents 
on the eastern shore), men of the most wisdom, experience, and 
virtue, above twenty-five years of age, residents of the State 
above three whole years next preceding the election, and having 
real and personal property above the value of one thousand 
pounds current money. 

" That the senators shall be balloted for, at one and the same 
time, and out of the gentlemen residents of the western shore, 
who shall be proposed as senators, the nine who shall, on striking 
the ballots, appear to have the greatest numbers in their favour, 
shall be accordingly declared and returned duly elected ; and out 
of the gentlemen residents of the eastern shore, who shall be 
proposed as senators, the six who shall, on striking the ballots, 
appear to have the greatest number in their favour, shall be ac- 
cordingly declared and returned duly elected : and if two or more 
on the same shore shall have an equal number of ballots in their 
favour, by which the choice shall not be determined on the first 
ballot, then the electors shall again ballot, before they separate ; 
in which they shall be confined to the persons who on the first 
ballot shall have an equal number : and they who shall have the 
greatest number in their favour on the second ballot, shall be 
accordingly declared and returned duly elected : and if the whole 
number should not thus be made up, because of an equal number, 

154 



Evolution from the Charters 

on the second ballot, still being in favour of two or more persons, 
then the election shall be determined by lot, between those who 
have equal numbers ; which proceedings of the electors shall be 
certified under their hands, and returned to the chancellor for the 
time being." (Maryland Constitution of 1776.) 

" Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors equal to the whole 
number of senators and representatives to which the state may 
be entitled in the congress ; but no senator or representative, or 
person holding an office of trust or profit under the United States, 
shall be appointed an elector. 

"The electors shall meet in their respective states, and vote 
by ballot for two persons, of whom one at least shall not be an 
inhabitant of the same state with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each, which list they shall sign and certify, and transmit 
sealed to the seat of the government of the United States, directed 
to the president of the senate. The president of the senate shall, 
in the presence of the senate and house of representatives, open 
all the certificates, and the votes shall then be counted. The 
person having the greatest number of votes shall be the president, 
if such number be a majority of the whole number of electors, 
appointed ; and if there be more than one who have such a 
majority, and have an equal number of votes, then the house of 
representatives shall immediately choose by ballot one of them 
for president ; and if no person have a majority, then from the 
five highest on the list the said house shall in like manner choose 
the president. But in choosing the president, the votes shall be 
taken by states, the representation from each state having one 
vote. A quorum for this purpose shall consist of a member or 
members from two-thirds of the states, and a majority of all the 
states shall be necessary to a choice. In every case, after the 
choice of the president, the person having the greatest number 
of votes of the electors shall be the vice-president. But if there 
should remain two or more who have equal votes, the senate shall 
choose from them by ballot the vice-president. ' * 

[The above quotation, which was Clause 3 of Section i, 

155 



Evolution of the Constitution 

Article II., of the Constitution, has been somewhat altered by 
the Twelfth Amendment.] 

1 5. Duty to Execute the Laws. 

The National Constitution contains the phrase " He 
[the President] shall take care that the laws be faithfully 
executed," — a short statement, but a very important 
summary of a large part of the duty of the President, 
and one of the clauses which give him authority to put 
down a rebellion. 

When we trace its origin in our documents we find 
the earliest reference to such a principle in the Massa- 
chusetts charter of 1629, which merely says that the 
laws must be observed and put in execution, without 
assigning the duty to any one in particular. But in the 
Maryland charter of 1632 the proprietor is assigned the 
duty and given the means of performing it in a very 
summary manner. After that the duty is usually given 
to the governor, and the language used becomes more 
and more like the simple, brief expression which finally 
appears in the Constitution. 

' ' Willing, comaunding, and requiring, and by theis Presents 
for Vs, our Heires, and Successors, ordeyning and appointing, 
that all such Orders, Lawes, Statuts and Ordiiihces, Instruccons 
and Direccons, as shalbe soe made by the Governor, or Deputie 
Governor of the said Company, and such of the Assistants and 
Freemen as aforesaide, and published in Writing, vnder their 
comon Seale, shalbe carefullie and dulie observed, kept, per- 
formed, and putt in Execucon, according to the true intent and 
meaning of the same." (Massachusetts Charter of 1629.) 

"Do grant free, full, and absolute power, by virtue of these 
presents to him [Lord Baltimore] and his heirs for the good and 

156 



Evolution from the Charters 

happy government of the said province, the same laws duly to 
execute upon all the people within the said province by imposition 
of penalties, imprisonment, or any other punishment ; yea, if it 
shall be needful, and that the quality of the offence require it, by 
taking away member or life, either by him, the said now Lord 
Baltimore and his heirs, or by his or their deputies, lieutenants, 
judges, justices, magistrates, officers, and ministers, to be or- 
dained or appointed according to the tenor and true intention of 
these presents." (Maryland Charter of 1632.) 

" I 1FI. Wi* being now chosen to be Goumor w^^in this Jurisdic- 
tion, for the yeare ensueing, and vntil a new be chosen, doe 
sweare by the greate and dreadfull name of the everliueing God, 
to p'^mote the publicke good and peace of the same, according to 
the best of my skill ; as also will mayntayne all lawfull priuiledges 
of this Comonwealth ; as also that all wholsome lawes that are 
or shall be made by lawfull authority here established, be duly 
executed." (Fundamental Orders of Connecticut, 1638.) 

The Carolina charter of 1663 copies the provision given above 
from the Maryland charter of 1632. 

"The governor, with his council before expressed, is to see 
that all courts established by the laws of the general assembly, and 
all ministers and officers, civil and military, do and execute their 
several duties and offices respectively according to the laws in 
force, and to punish them for swerving from the laws or acting 
contrary to their trust, as the nature of their offence shall require." 
(Concessions of East Jersey, 1665.) 

The Carolina charter of 1665 copies the provision given above 
from the Maryland charter of 1632. 

* ' And the same laws duly to execute unto and upon all people 
within the said country and the limits thereof." (Pennsylvania 
Charter of 168 1.) 

' ' That the governor and provincial council shall take care that 
all laws, statutes, and ordinances, which shall at any time be 
made within the said province, be duly and diligently executed." 
(Pennsylvania Frame of April 2, 1683.) 

The above provision is repeated in the Pennsylvania Frame of 
1683 and also in the Pennsylvania Frame of 1696. 

157 



Evolution of the Constitution 

"That it be his office and duty to cause them to be carried 
into execution." (Franklin's Plan of 1754.) 

' ' It shall be his office and duty to cause them to be carried into 
execution." (Galloway's Plan, 1774.) 

"The president, and, in his absence, the vice-president, with 
the council, are also to take care that the laws be faithfully exe- 
cuted." (Pennsylvania Constitution of 1776.) 

"I, A. B., elected governor of the state of Georgia, do sol- 
emnly promise and swear that I will use my utmost endeavors 
that the laws and ordinances of the state be duly observed." 
(Georgia Constitution of 1777.) 

" That it shall be the duty of the governor to take care that the 
laws are faithfully executed to the best of his ability." (New 
York Constitution of 1777.) 

The Vermont constitution of 1777 and the Vermont constitu- 
tion of 1786 repeat the provision given above from the Pennsyl- 
vania constitution of 1776. 

" He [the President] shall take care that the laws of the United 
States be duly executed." (Pinckney's Plan, 1787.) 

" He [the President] shall take care that the laws be faithfully 
executed." (The Constitution.) 

16. The President as Commander-in-Chief. 

The Constitution describes the President as com- 
mander-in-chief, and gives him control over the army 
and navy and over the militia of the several States 
when called into the actual service of the United States. 
The origin of this power and of the name commander- 
in-chief is perhaps as good an illustration as could be 
given of the growth which preceded the formation of the 
Constitution. 

The first quotation, which is from the Concessions of 
East Jersey of 1665, shows the power given without the 
name. The proprietors of East Jersey provided that 

158 



Evolution from the Charters 

the governor whom they appointed should control any 
militia that might be raised in their wilderness province. 
Thirty-one years afterwards, when William Penn was 
preparing his plan for a union of all the colonies, he also 
thought that the person who was to be the executive to 
carry out the plan should have control of the militia 
of the colonies, and he almost gave him the name that 
was finally adopted, for he called him a " chief com- 
mander." Thirty-six years later the Georgia charter of 
1732 called him the commander-in-chief, and from that 
time on this name alternates with captain-general, until 
the Constitution adopts it in a clause which briefly 
summarizes the forms that had been previously given. 

"The said governor, who is commissionated by us over the 
several framed [train] bands and companies." (Concessions of 
East Jersey, 1665.) 

" That in times of war the king's high commissioner shall be 
general or chief commander of the several quotas upon service 
against the common enemy, as he shall be advised, for the good 
and benefit of the whole." (Penn's Plan of Union, 1696.) 

' ' And our will and pleasure is, and we do hereby, for us, our 
heirs and successors, declare and grant that the governor and 
commander-in-chief of the province of South Carolina, of us, our 
heirs and successors, for the time being, shall at all times here- 
after have the chief command of the militia of our said province, 
hereby erected and established." (Georgia Charter of 1732.) 

" That the supreme command of all the military force em- 
ployed by the president and council be in the president." (Hutch- 
inson's Plan, 1754.) 

' ' That the general assembly and the said legislative council 
shall jointly choose by ballot from among themselves, or from the 
people at large, a president and commander-in-chief and a vice- 
president of the colony." (South Carolina Constitution of 1776.) 

15.9 



Evolution of the Constitution 

' ' That the governor, or, in his absence, the vice-president of 
the council, shall act as captain-general and commander-in-chief 
of all the militia and other military force in this colony. ' ' (New 
Jersey Constitution of 1776.) 

" The president, with the advice and consent of the privy coun- 
cil, may act as captain-general and commander-in-chief" [of the 
militia]. (Delaware Constitution of 1776,) 

' ' The president shall be commander-in-chief of the forces of 
the State, but shall not command in person, except advised thereto 
by the council, and then only so long as they shall approve 
thereof." (Pennsylvania Constitution of 1776.) 

* ' The governor, for the time being, shall be captain-general 
and commander-in-chief of the militia. ' ' (North Carolina Con- 
stitution of 1776.) 

' ' The governor, for the time being, shall be captain-general 
and commander-in-chief over all the militia and other military 
and naval forces belonging to this State." (Georgia Constitution 
of 1777.) 

* ' That the governor shall, by virtue of his office, be general 
• and commander-in-chief of all the militia and admiral of the 
navy of this State.'* (New York Constitution of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' The congress shall have the sole power of appointing a 
generalissimo and commander-in-chief of the land forces." 
(Drayton's Articles of Confederation, 1778.) 

" He [the governor] shall be general and commander-in-chief 
of the militia and admiral of the navy of this State." (Rejected 
Constitution of Massachusetts of 1778.) 

" The governor of this commonwealth, for the time being, shall 
be the commander-in-chief of the army and navy and of all the 
military forces of the State by sea and land." (Massachusetts 
Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

160 



Evolution from the Charters 

*' He [the President] shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the several 
States." (Pinckney's Plan, 1787.) 

' ' The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several States 
when called into the actual service of the United States." (The 
Constitution.) 

17. Veto Power. 

The quotations in this section show the absolute veto 
power of governor or king as it existed in various forms 
in colonial times up to the New York constitution of 
1777, when the modified veto appeared, afterwards 
adopted in the Constitution. 

The first appearance of anything like a veto power 
was in the Maryland charter of 1632, which gave Lord 
Baltimore the power to make laws with the assent of 
the freemen or their delegates. The effect of this in 
practice was, of course, that the assembly of the free- 
men made the laws and submitted them to Lord Balti- 
more or his deputy for approval. 

" Know ye therefore, moreover, that we, reposing especial 
trust and confidence in the fidelity, wisdom, justice, and provi- 
dent circumspection of the said now Lord Baltimore, for us, our 
heirs and successors, do grant free, full, and absolute power, by 
virtue of these presents, to him and his heirs, for the good and 
happy government of the said province, to ordain, make, enact, 
and, under his and their seals, to publish any laws whatsoever 
appertaining either unto the public state of the said province or 
unto the private utility of particular persons according unto their 
best discretions, of and with the advice, assent, and approbation 
of the freemen of the said province, or the greater part of them, 
or, of their delegates or deputies." (Maryland Charter of 1632.) 
II 161 



Evolution of the Constitution 

The above provision is repeated in the Carolina charter of 
1663. 

"Which laws, etc., so made shall receive publication from the 
governor and council (but as the laws of us and our general as- 
sembly) and be in force for the space of one year and no more 
unless contradicted by the lords proprietors, within which time 
they are to be presented to us, our heirs, etc., for our ratification, 
and, being confirmed by us, they shall be in continual force till 
expired by their own limitation or by act of repeal in like manner 
to be passed as aforesaid and confirmed." (Concessions of East 
Jersey, 1665.) 

The Carolina Charter of 1665 copies the provision given above 
from the Maryland Charter of 1632. 

' ' The palatine' s court shall consist of the palatine and seven, 
proprietors. This court shall have a negative upon all acts, 
orders, votes, and judgments of the grand council and the par- 
liament" [except in the appointment of landgraves, caziques, 
and proprietors]. "No act or order of parliament shall be 
of any force unless it be ratified in open parliament during 
the same session by the palatine or his deputy and three more 
of the lords proprietors or their deputies, and then not to con- 
tinue longer in force but until the next biennial parliament, 
unless in the mean time it be ratified under the hands and 
seals of the palatine himself and three more of the lords 
proprietors themselves, and by their order published at the 
next biennial parliament." (Locke's Carolina Constitution of 
1669.) 

' ' And our will and pleasure is, and we do hereby declare, 
ordain, and grant, that all and every such Acts, Laws, and ordi- 
nances, as shall from time to time be made in and by such gen- 
eral Assembly or Assemblies, shall be first approved and allowed 
by the Pres. and Councell for the time being, and, thereupon 
shall stand and be in force until y^ pleasure of us, our heirs 
and successors, shall be known, whether y^ same Laws and ordi- 
nances shall receive any change or confirmation, or be totally 
disallowed and discharged." (Commission for New Hampshire 
of 1680.) 

162 



Evolution from the Charters 

The Pennsylvania Charter of 1681 copies the provision given 
above from the Maryland Charter of 1632. 

" Our further will and pleasure is that a transcript or Duplicate 
of all Lawes, which shall bee soe as aforesaid made and published 
within the said Province, shall within five yeares after the makeing 
thereof, be transmitted and delivered to the Privy Councell, for 
the time being, of us, our heires and successors : And if any of 
the said Lawes, within the space of six moneths after that they 
shall be soe transmitted and delivered, bee declared by us, Our 
heires and Successors, in Our or their Privy Councell, inconsistent 
with the Sovereigntey or lawful Prerogative of us, our heires or 
Successors, or contrary to the Faith and Allegiance due by the 
legall government of this Realme, from the said Willia?n Penn, 
or his heires, or of the Planters and Inhabitants of the said Prov- 
ince, and that thereupon any of the said Lawes shall bee adjudged 
and declared to bee void by us, our heires or Successors, under 
our or their Privy Scale, that then and from thenceforth, such 
Lawes, concerning which such Judgement and declaration shall 
bee made, shall become voyd : Otherwise the said Lawes soe 
transmitted, shall remaine, and stand in full force, according to 
the true intent and meaneing thereof. " (Pennsylvania Charter of 
1681.) 

' ' Provided alwaies and Wee doe by these presents for vs Our 
Heires and Successors Establish and Ordaine that in the frameing 
and passing of all such Orders Laws Statutes and Ordinances and 
in all Elections and Acts of Government whatsoever to be passed 
made or done by the said Generall Court or Assembly or in Coun- 
cill the Governor of our said Province or Territory of the Massa- 
chusetts Bay in New England for the time being shall have the 
Negative voice and that without his consent or Approbation signi- 
fied and declared in Writeing no such Orders Laws Statutes 
Ordinances Elections or other Acts of Government whatsoever soe 
to be made passed or done by the said Generall Assembly or in 
Councill shall be of any Force effect or validity anything herein 
contained to the contrary in anywise notwithstanding And wee 
doe for vs Our Heires and Successors Establish and Ordaine that 
the said Orders Laws Statutes and Ordinances be by the first 

163 



Evolution of the Constitution 

opportunity after the makeing thereof sent or Transmitted vnto vs 
Our Heires and Successors vnder the Publique Seale to be ap- 
pointed by vs for Our or their approbation or Disallowance And 
that in case all or any of them shall at any time within the space 
of three yeares next after the same shall have been presented to 
vs our Heires and Successors in Our or their Privy Councill be 
disallowed and reiected and soe signified by vs Our Heires and 
Successors vnder our or their Signe Manuall and Signett or by or 
in our or their Privy Councill vnto the Governor for the time 
being then such and soe many of them as shall be soe disallowed 
and riected shall thenceforth cease and determine and become 
vtterly void and of none effect Provided alwais that incase Wee 
our Heires or Successors shall not within the Terme of Three 
Yeares after the presenting of such Orders Lawes Statutes or 
Ordinances as aforesaid signifie our or their Disallowance of 
the same Then the said orders Lawes Statutes or Ordinances 
shall be and continue in full force and effect according to the true 
Intent and meaneing of the same vntill the Expiracon thereof 
or that the same shall be Repealed by the Generall Assembly of 
our said province for the time being." (Massachusetts Charter, 
1691.) 

' ' All which proposed and prepared bills, or such of them as 
the governor, with the advice of the council, shall in open assem- 
bly declare his assent unto shall be the laws of this province and 
territories thereof." (Pennsylvania Frame of 1696.) 

' ' In all which cases the governor-general or lieutenant is to 
have a negative." (Daniel Coxe's Plan, 1722.) 

"And the same [laws] shall and may present under their 
common seal to us, our heirs and successors, in our or their privy 
council for our or their approbation or disallowance : and the said 
laws, statutes and ordinances, being approved of by us, our heirs 
and successors, in our or their privy council, shall from thence 
forth be in full force and virtue within our said province of 
Georgia." (Georgia Charter of 1732.) 

' ' That the assent of the president-general be requisite to all 
acts of the grand council." (Frankhn's Plan of 1754.) 

' ' That the assent of the president be made necessary to all 

164 



Evolution from the Charters 

acts of the council, saving the choice of the speaker." (Hutch- 
inson's Plan, 1754.) 

" The president-general's assent shall be requisite to all acts of 
the grand council." (Galloway's Plan, 1774.) 

' ' Bills having passed the general assembly and legislative 
council may be assented to or rejected by the president and 
commander-in-chief." (South CaroHna Constitution of 1776.) 

' ' And whereas laws inconsistent with the spirit of this consti- 
tution, or with the public good, may be hastily and unadvisedly 
passed : Be it ordained, that the governor for the time being, the 
chancellor, and the judges of the supreme court, or any two of 
them, together with the governor, shall be, and hereby are, con- 
stituted a council to revise all bills about to be passed into laws 
by the legislature ; and for that purpose shall assemble themselves 
from time to time, when the legislature shall be convened ; for 
which, nevertheless, they shall not receive any salary or consid- 
eration, under any pretence whatever. And that all bills which 
have passed the senate and assembly shall, before they become 
laws, be presented to the said council for their revisal and con- 
sideration ; and if, upon such revision and consideration, it should 
appear improper to the said council, or a majority of them, that 
the said bill should become a law of this state, that they return 
the same, together with their objections thereto in writing, to the 
senate or house of assembly (in whichsoever the same shall have 
originated), who shall enter the objections sent down by the coun- 
cil at large in their minutes, and proceed to reconsider the said 
bill. But if, after such reconsideration, two-thirds of the said 
senate or house of assembly shall, notwithstanding the said objec- 
tions, agree to pass the same, it shall, together with the objections, 
be sent to the other branch of the legislature, where it shall also 
be reconsidered, and, if approved by two-thirds of the members 
present, shall be a law. And in order to prevent any unnecessary 
delays, be it further ordained, that if any bill shall not be re- 
turned by the council within ten days after it shall have been 
presented, the same shall be a law, unless the legislature shall, by 
their adjournment, render a return of the said bill within ten 
days impracticable ; in which case the bill shall be returned on 

165 



Evolution of the Constitution 

the first day of the meeting of the legislature after the expiration 
of the said ten days." (New York Constitution of 1777.) 

" No bill or resolve of the senate or house of representatives 
shall become a law, and have force as such, until it shall havq 
been laid before the governor for his revisal ; and if he, upon such 
revision, approve thereof, he shall signify his approbation by 
signing the same. But if he have any objection to the passing of 
such bill or resolve, he shall return the same, together with his 
objections thereto, in writing, to the senate or house of representa- 
tives, in whichsoever the same shall have originated, who shall 
enter the objections sent down by the governor, at large, on their 
records, and proceed to reconsider the said bill or resolve ; but if, 
after such reconsideration, two-thirds of the said senate or house 
of representatives shall, notwithstanding the said objections, agree 
to pass the same, it shall, together with the objections, be sent to 
the other branch of the legislature, where it shall also be recon- 
sidered, and, if approved by two-thirds of the members present, 
shall have the force of law ; but in all such cases the vote of both 
houses shall be determined by yeas and nays, and the names of 
the persons voting for or against the said bill or resolve shall be 
entered upon the public records of the commonwealth. And in 
order to prevent unnecessary delays, if any bill or resolve shall 
not be returned by the governor within five days after it shall 
have been presented, the same shall have the force of law." 
(Massachusetts Constitution of 1780.) 

' ' Every bill which shall have passed the legislature shall be 
presented to the President of the United States for his revision. 
If he approves it he shall sign it, but if he does not approve it he 
shall return it, with his objections, to the house it originated in, 
which house, if two-thirds of the members present, notwithstand- 
ing the President's objections, agree to pass it, shall send it to 
the other house, with the President's objections ; where, if two- 
thirds of the members present also agree to pass it, the same shall 
become a law ; and all bills sent to the President and not returned 
by him within days shall be laws unless the legislature, by 

their adjournment, prevent their return, in which case they shall 
not be laws." (Pinckney's Plan, 1787.) 

166 



Evolution from the Charters 

' ' Every bill which shall have passed the house of representa- 
tives and the senate shall, before it become a law, be presented 
to the President of the United States. If he approve he shall 
sign it, but if not he shall return it, with his objections, to that 
house in which it shall have originated, who shall enter the ob- 
jections at large in their journal and proceed to reconsider it. If, 
after such reconsideration, two-thirds of that house shall agree to 
pass the bill, it shall be sent, together with the objections, to the 
other house, by which it shall likewise be reconsidered, and, if 
approved by two-thirds of that house, it shall become a law. But 
in all such cases the votes of both houses shall be determined by 
yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each house 
respectively. If any bill shall not be returned by the President 
within ten days (Sundays excepted) after it shall have been pre- 
sented to him, the same shall be a law in like manner as if he had 
signed it, unless the congress, by their adjournment, prevent its 
return, in which case it shall not be a law. Every order, resolu- 
tion, or vote, to which the concurrence of the senate and house of 
representatives may be necessary (except on a question of ad- 
journment) shall be presented to the President of the United 
States, and before the same shall take effect shall be approved by 
him, or, being disapproved by him, shall be repassed by two-thirds 
of the senate and house of representatives, according to the rules 
and limitations prescribed in the case of a bill." (The Consti- 
tution.) 

1 8. The Pardoning Power. 

Many experiments were made with the pardoning 
power before it was given its present characteristics in 
the National Constitution. Beginning with the Virginia 
charter of 1609, which gave the power generally to the 
company and its officers, the power shifted about for 
over a hundred and seventy years from the governor 
to the legislature, and from the legislature to the gov- 
ernor and his council, or to a board composed of the 

167 



Evolution of the Constitution 

governor, the heu tenant-governor, and the speaker of 
the house of representatives, until in the Constitution 
it rested with the President alone, except in cases of 
irnpeachment, which had been an exception in some 
previous documents. 

In the Maryland charter of 1632 Lord Baltimore was 
given the right to pardon before judgment, — a right 
which no governor of any of our States is now believed 
to possess. But it seems to have been thought at one 
time in Massachusetts that the bare right to pardon 
would carry with it the right to pardon either before or 
after judgment, for in the constitution of that State of 
1780 the right to pardon before judgment is expressly 
prohibited. 

Of late years some of our States have returned to the 
old method of a board of pardons composed of the 
governor and other officers. 

Officers of the company to punish and pardon according to 
such laws as should be made. In defect of law, in cases of neces- 
sity at their discretion. (Virginia Charter of 1609.) 

Officers of the company to punish and pardon according to 
such laws as should be made. (Massachusetts Charter of 1629.) 

The pardoning power given to the proprietor. (Maryland 
Charter of 1632.) 

The above provision is repeated in the Grant of Maine of 1639. 

The pardoning power given to the legislature. (Connecticut 
Charter of 1662.) 

The above provision is repeated in the Rhode Island Charter 
of 1663. 

The Carolina Charter of 1663 copies the provision above 
given from the Maryland charter of 1632. 

The pardoning power given to the proprietor. (Concessions 
of East Jersey, 1665.) 

168 



Evolution from the Charters 

The Carolina charter of 1665 copies the provision above 
given from the Maryland charter of 1632. 

The pardoning power given to the palatine and his court. 
(Locke's Carolina Constitution of 1669.) 

The pardoning power given to the proprietor. (Pennsylvania 
Charter of 168 1.) 

The pardoning power given to the governor and his council. 
(Virginia Constitution of 1776.) 

The pardoning power given to the governor and his council. 
(New Jersey Constitution of 1776.) 

The pardoning power given to the governor. (Delaware Con- 
stitution of 1776.) 

The pardoning power given to the governor and his council. 
(Pennsylvania Constitution of 1776.) 

The pardoning power given to the governor. (Maryland Con- 
stitution of 1776.) 

The pardoning power given to the governor. (North Carolina 
Constitution of 1776.) 

The pardoning power given to the legislature. (Georgia Con- 
stitution of 1777.) 

The pardoning power in treason and murder given to the legis- 
lature and in other crimes to the governor. (New York Constitu- 
tion of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

The governor and council may reprieve for not more than six 
months ; the pardoning power given to the governor, lieutenant- 
governor, and speaker of the house of representatives. (Rejected 
Constitution of Massachusetts of 1778.) 

The governor and council may reprieve for not more than six 
months ; the pardoning power given to the legislature. (Rejected 
Constitution of New Hampshire of 1778.) 

The pardoning power, except in cases of impeachment, given 
to the governor and council, but no pardon given before convic- 
tion shall avail. (Massachusetts Constitution of 1780.) 

The above provision is repeated in the New Hampshire con- 
stitution of 1784. 

169 



Evolution of the Constitution 

The Vermont constitution of 1 786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

The pardoning power, except in impeachment, given to the 
President. (Pinckney's Plan, 1787.) 

The pardoning power, except in impeachment, given to the 
President. (The Constitution.) 

19. President's Message. 

"That he [the President] recommend them y® making of such 
Acts, Laws, and Ordinances, as may most tend to y® establishing 
them in obedience to our authority ; their own p'servation in peace 
and good Governm', and defend against their enemies, and that 
they do consider of the fittest ways for raising of taxes, and in 
such proportion as may be fit fory^ support of y® s*^ Governm*." 
(Commission for New Hampshire of 1680.) 

" That it shall be the duty of the governor to inform the legis- 
lature, at every session, of the condition of the State, so far as 
may respect his department ; to recommend such matters to their 
consideration as shall appear to him to concern its good govern- 
ment, welfare, and prosperity." (New York Constitution of 

1777.) 

" It shall be the duty of the governor to inform the legislature, 
at every season of the general court, of the ct)ndition of the State, 
and from time to time to recommend such matters to their con- 
sideration as shall appear to him to concern its good government, 
welfare, and prosperity." (Rejected Constitution of Massachusetts 
of 1778.) 

"He shall from time to time give information to the legis- 
lature of the state of the Union, and recommend to their con- 
sideration the measures he may think necessary." (Pinckney's 
Plan, 1787.) 

' ' He [the President] shall from time to time give to the Con- 
gress information of the state of the Union, and recommend to 
their consideration such measures as he shall judge necessary 
and expedient." (The Constitution.) 



170 



Evolution from the Charters 

20. Appointing Power. 

The power to fill the offices of government is given 
in the National Constitution, in a rather curious way, to 
the President and Senate, with a discretion left to Con- 
gress to provide by law for appointment to inferior 
offices, and the summary shows that this method of 
dividing the power between the executive and the legis- 
lature was the result of a long development from the 
earliest colonial times. 

In the governments of Europe it was not common for 
the legislature to appoint to office, and in England the 
appointing power was in the Crown ; but in the early 
colonial charters and constitutions the power was fre- 
quently given solely to the legislature. As time went 
on, the executive was given a share in it, and it was 
divided up among the governor, the council, and the 
legislature in varying proportions until the plan adopted 
in the Constitution was reached. 

Appointing power given to the council. (Virginia Charter of 
1609.) 

Appointing power given to the general courts, which were com- 
posed of the treasurer and company. (Virginia Charter of 161 1- 
12.) 

Appointing power given to the council. (Charter of New 
England of 1620.) 

Appointing power given to the general court, which was com- 
posed of the governor, assistants, and freemen. (Massachusetts 
Charter of 1629.) 

Appointing power given to the proprietor. (Maryland Charter 
of 1632.) 

Appointing power given to the general assembly. (Funda- 
mental Orders of Connecticut, 1638.) 

171 



Evolution of the Constitution 

Appointing power given to the general assembly. (Connecticut 
Charter of 1662.) 

The above provision is repeated in the Rhode Island Charter 
of 1663. 

Appointing power given to the proprietor. (Carolina Charter 
of 1663.) 

Appointing power given to the governor and his council. (Con- 
cessions of East Jersey of 1665.) 

Appointing power given to the proprietor. (Pennsylvania 
Charter of 168 1.) 

The provincial council to nominate and the governor to ap- 
point. (Pennsylvania Frame of April 2, 1683.) 

The provincial council and assembly to nominate and the 
governor tb appoint. (Pennsylvania Frame of 1683.) 

Appointing power given to the governor, with the consent of 
the council, as to certain officers, such as judges, sheriffs, etc., and 
the other officers to be appointed by the assembly. (Massa- 
chusetts Charter of 1691.) 

The freemen and justices to nominate and the governor to 
appoint sheriffs, coroners, and clerks of the peace. (Pennsyl- 
vania Charter of Privileges of 1701.) 

Appointing power given to the common council. (Georgia 
Charter of 1732.) 

Appointing power given to the president-general and grand 
council. (Franklin's Plan of 1754.) 

Appointing power given to the president and council. (Hutch- 
inson' s Plan of 1754.) 

Appointing power given to the Congress, (Franklin' s Articles 
of C onfederation of 1775.) 
t Appointing power given to the two houses of the legislature. 
(New Hampshire Constitution of 1776.) 

Appointing power given to the legislature, except in a few in- 
A stances, where the president and council could appoint. (South 
Carolina Constitution of 1776.) 
^^-1 Appointing power divided between the two houses of as- 
sembly and the governor and council. (Virginia Constitution 
of 1776.) 

172 



Evolution from the Charters 

Appointing power given to the council and assembly. (New 
Jersey Constitution of 1776.) 

Appointing power divided among the president, council, and 
assembly. (Delaware Constitution of 1776.) 

Appointing power divided among the president, council, and 
the assembly. (Pennsylvania Constitution of 1776.) 

Appointing power given to the governor and council, except in 
a few officers. (Maryland Constitution of 1776.) 

Appointing power given to the legislature. (North Carolina 
Constitution of 1776.) 

The governor, with the consent of a council of the senate, to 
appoint. (New York Constitution of 1777.) 

Appointing power divided among the governor, council, and 
the assembly. (Vermont Constitution of 1777.) 

Civil officers annually chosen to be appointed by the legisla- 
ture ; others by the governor and senate. (Rejected Constitu- 
tion of Massachusetts of 1778.) 

The appointing power divided between the governor and the 
legislature. (South Carolina Constitution of 1778.) 

Appointing power given to the general court. (Rejected Con- 
stitution of New Hampshire of 1778.) 

Appointing power given to Congress. (Articles of Confedera- 
tion, 1778.) 

Appointing power given to Congress. (Drayton' s Articles of 
Confederation, 1778.) 

Appointing power divided among the governor, council, and 
the legislature. (Massachusetts Constitution of 1780.) 

Appointing power given to the president and council. (New 
Hampshire Constitution of 1784.) 

Appointing power divided between the President and the Sen- 
ate. (Pinckney's Plan, 1787.) 

Appointing power given to the President and Senate, with dis- 
cretion to Congress to vest the appointment of inferior officers in 
the President alone, in the courts of law, or in the heads of depart- 
ments. (The Constitution.) 



173 



Evolution of the Constitution 

21. The Judiciary. 

The summary in this section is not given because it 
shows a line of development leading to a clause in the 
Constitution, but merely to show the gradual growth of 
a judiciary department in the colonial governments. 
The growth of the legislative and executive departments 
in colonial times having been shown, it seems necessary 
to show the growth of the judiciary in order to complete 
the three great departments, even if the line of the 
judiciary's development is not carried down to the Con- 
stitution. 

The reason for not carrying the line down to the Con- 
stitution is that the judiciary department in the Consti- 
tution seems to have a separate line of development 
connected with the development of federalism, and it 
will be treated under that head. When federalism, or 
the idea of having a national government controlling 
the people of all the States, was first developing, it was 
not considered necessary to have in it any judiciary de- 
partment at all. The judiciary gained an entrance into 
federalism very slowly, and at first had jurisdiction only 
in cases of captures in war and piracies and felonies on 
the high seas, and this was, of course, not necessarily 
connected with the gradual rise of a judiciary depart- 
ment in the colonial or State governments. 

The summary in this section has, accordingly, been 
carried only far enough to show the growth and firm 
establishment of a judiciary department as a part of 
colonial government, and it stops at the Georgia charter 
of 1732. The constitutions of 1776 did not usually 
provide for a judiciary department, because those which 

174 



Evolution from the Charters 

they had had through the colonial period were already 
in existence and were satisfactory. Nothing was to be 
gained for the cause of the Revolution by creating new 
ones, and these constitutions of 1776 were intended to 
conform existing institutions to the new conditions of 
independence rather than to create out-and-out new 
forms of government. It will be observed that in the 
earliest documents only criminal jurisdiction is given. 

Council in Virginia given authority to bind over and punish 
offenders or send them to England for trial. (Virginia Charter, 
1611-12.) 

Council given authority to correct and punish. (Charter of 
New England of 1620.) 

Power given to the freemen to pass laws inflicting fines and 
imprisonment. (Massachusetts Charter of 1629.) 

Power given to the proprietor to establish both civil and crimi- 
nal courts. (Maryland Charter of 1632.) 

Judicial power given to the magistrates, who were, in effect, the 
governor' s council. (Fundamental Orders of Connecticut of 1 638.) 

The provision from the Maryland charter of 1632 is sub- 
stantially repeated in the grant of Maine of 1639. 

The general assembly given power to establish courts, both 
civil and criminal. (Connecticut Charter of 1662.) 

The above provision is substantially repeated in the Rhode 
Island charter of 1663. 

The provision from the Maryland charter of 1632 is repeated 
in the Carolina charter of 1663. 

The general assembly given power to establish courts, and the 
governor and his council given power to establish criminal courts. 
(Concessions of East Jersey, 1665.) 

The provision from the Maryland charter of 1632 is repeated 
in the Carolina charter of 1665. 

An elaborate system of courts established by Locke's Carolina 
constitution. (Locke's Carolina Constitution of 1669.) 

175 



Evolution of the Constitution 

The legislature given power to establish courts. (Concessions 
of West Jersey, 1677.) 

The president and council made a court of both civil and 
criminal cases, with right of appeal to England. (Commission 
for New Hampshire of 1680.) 

The proprietor may establish courts of all kinds, but appeals 
maybe taken to England. (Pennsylvania Charter of 1681.) 

The power of establishing courts given to the governor and 
council. (Pennsylvania Frame of April 2, 1683.) 

The general assembly given power to establish courts, and the 
governor and council to be a court of probate and administration. 
(Massachusetts Charter of 169 1.) 

The corporation given power to establish courts. (Georgia 
Charter of 1732.) 

22. Method of Amending. 

At the time of the first settlement of America every 
country's form of government was supposed by its 
creators and upholders to last forever. As a matter of 
fact, however, it was well known that governments 
were changed by violence and revolution or by a slow, 
almost imperceptible process of change of custom. The 
governments of the colonies were often changed by new 
charters signed by the king, and it was understood that 
the power that created these governments could at any 
time alter or abolish them. 

But still the fiction was kept up of having each charter 
declare that its particular form of government for the 
colony should be perpetual, and it was not until William 
Penn and his colonists were making their frame of 1683 
that the idea seems to have occurred of providing, in the 
instrument of government itself, a regular and orderly 
method of changing it as time should show the necessity 

176 



Evolution from the Charters 

for change. It was a natural thought, and there is no 
evidence that either Penn or his people believed that 
they were suggesting anything wonderful. But their 
method, as the summary shows, was repeated and re- 
peated until, after running through many of the consti- 
tutions of 1776, the Articles of Confederation, and other 
American documents, it found its place in the National 
Constitution. 

It is generally believed to be a very important part of 
the Constitution, giving the elasticity which secures per- 
manence and prevents revolution. It has already been 
used to make most far-reaching changes, and will prob- 
ably be used for the same purpose again. As it stands 
in the Constitution, it is generally regarded as peculiarly 
American : so that it is interesting to trace its American 
growth for over a hundred years. 

There is a curious resemblance between the clause in 
the Constitution and the similar clause in the Pennsyl- 
vania Charter of Privileges of 1701. The Pennsylvania 
document provides that it may be amended by the con- 
sent of the governor and six parts of seven of the assem- 
bly, but that the article relating to liberty of conscience 
shall never be altered. The National Constitution pro- 
vides for amendment by consent of three-fourths of the 
States, but, like the Pennsylvania Charter of Privileges, 
adds the exceptions that no State without its consent 
shall be deprived of its equal suffrage in the Senate, and 
that prior to 1808 no amendment shall affect the right 
to import slaves or affect direct taxation. 

"That no act, law, or ordinance whatsoever, shall at anytime 
hereafter, be made or done by the Governor of this province, his 

177 



Evolution of the Constitution 

heirs or assigns, or by the freemen in the provincial Council, or 
the General Assembly, to alter, change, or diminish the form, or 
effect, of this charter, or any part, or clause thereof, or contrary 
to the true intent and meaning thereof, without the consent of the 
Governor, his heirs, or assigns, and six parts of seven of the said 
freemen in provincial Council and General Assembly.' ' (Penn- 
sylvania Frame of April 2, 1683,) 

The above provision is repeated in the Pennsylvania Frame of 
1683 and in the Pennsylvania Frame of 1696. 

"AND no Act, Law or Ordinance whatsoever, shall at any 
Time hereafter, be made or done, to alter, change or diminish the 
Form or Effect of this Charter, or of any Part or Clause therein, 
contrary to the true Intent and Meaning thereof, without the Con- 
sent of the Governor for the Time being, and Six Parts of Seven 
of the Assembly met. 

" BUT because the Happiness of Mankind depends so much 
upon the Enjoying of Liberty of their Consciences as aforesaid, I 
do hereby solemnly declare, promise and grant, for me, my Heirs 
and Assigns, That the First Article of this Charter relating to 
Liberty of Conscience, and every Part and Clause therein, ac- 
cording to the true Intent and Meaning thereof, shall be kept and 
remain, without any Alteration, inviolably for ever." (Pennsyl- 
vania Charter of Privileges of 1701.) 

" As all new institutions may have imperfections which only 
time and experience can discover, it is agreed that the general 
congress, from time to time, shall propose such amendments of 
this constitution as may be found necessary, which, being ap- 
proved by a majority of the colony assemblies, shall be equally 
binding with the rest of the articles of this confederation. ' * (Frank- 
lin's Articles of Confederation, 1775.) 

" No article of the declaration of rights and fundamental rules 
of this State, agreed to by this convention, nor the first, second, 
fifth (except that part thereof that relates to the right of suffrage), 
twenty-sixth, and twenty-ninth articles of this constitution ought 
ever to be violated on any pretence whatever. 

"No other part of this constitution shall be altered, changed, 
or diminished without the consent of five parts in seven of the 

178 



Evolution from the Charters 

assembly and seven members of the legislative council. ' ' (Dela- 
ware Constitution of 1776.) 

' ' The said council of censors shall also have power to call a 
convention, to meet within two years after their sitting, if there 
appear to them an absolute necessity of amending any article of 
the constitution which may be defective, explaining such as may 
be thought not clearly expressed, and of adding such as are neces- 
sary for the preservation of the rights and happiness of the people : 
But the articles to be amended, and the amendments proposed, 
and such articles as are proposed to be added or abolished, shall 
be promulgated at least six months before the day appointed for 
the election of such convention, for the previous consideration of 
the people, that they may have an opportunity of instructing their 
delegates on the subject." (Pennsylvania Constitution of 1776.) 

" That this Form of Government, and the Declaration of Rights, 
and no part thereof, shall be altered, changed, or abolished, 
unless a bill so to alter, change or abolish the same shall pass the 
General Assembly, and be published at least three months before 
a new election, and shall be confirmed by the General Assembly, 
after a new election of Delegates, in the first session after such 
new election ; provided that nothing in this form of government, 
which relates to the eastern shore particularly, shall at any time 
hereafter be altered, unless for the alteration and confirmation 
thereof at least two-thirds of all the members of each branch of 
the General Assembly shall concur." (Maryland Constitution of 
1776.) 

* ' No alteration shall be made in this constitution without peti- 
tions from a majority of the counties, and the petitions from each 
county to be signed by a majority of voters in each county within 
this State ; at which time the assembly shall order a convention to 
be called for that purpose, specifying the alterations to be made, 
according to the petitions preferred to the assembly by the ma- 
jority of the counties as aforesaid." (Georgia Constitution of 

1777.) 

The Vermont constitution of i ']']'] repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" That no part of this constitution shall be altered without 

179 



Evolution of the Constitution 

notice being previously given of ninety days, nor shall any part 
of the same be changed without the consent of a majority of the 
members of the senate and house of representatives." (South 
Carolina Constitution of 1778.) 

' • The general court shall have no power to alter any part of 
this constitution, and, in case they should concur in any proposed 
alteration, amendment, or addition, the same being agreed to by 
a majority of the people, shall become valid." (Rejected Con- 
stitution of Massachusetts of 1778,) 

' ' Nor shall any alteration at any time hereafter be made in any 
of them unless such alteration be agreed to in a congress of the 
United States and be afterwards confirmed by the legislatures of 
eveiy State." (Articles of Confederation, 1778.) 

' ' The articles of this confederation shall be strictly binding 
upon, and inviolably observed by, the parties interested therein ; 
nor shall any alteration be made in them, or any of them, unless 
such alteration shall be agreed to in the congress and allowed by 
the legislature of every State in the confederacy." (Drayton's 
Articles of Confederation, 1778.) 

" In order the more effectually to adhere to the principles of 
the constitution and to correct those violations which by any 
means may be made therein, as well as to form such alterations 
as from experience shall be found necessary, the general court 
which shall be in the year of our Lord one thousand seven hun- 
dred and ninety-five shall issue precepts to the selectmen of the 
several towns, and to the assessors of the unincorporated planta- 
tions, directing them to convene the qualified voters of their re- 
spective towns and plantations for the purpose of collecting their 
sentiments on the necessity or expediency of revising the consti- 
tution in order to amendments. 

' ' And if it shall appear, by the returns made, that two-thirds 
of the qualified voters throughout the State, who shall assemble 
and vote in consequence of the said precepts, are in favor of such 
revision or amendment, the general court shall issue precepts, or 
direct them to be issued from the secretary's office, to the several 
towns to elect delegates to meet in convention for the purpose 
aforesaid. 

180 



Evolution from the Charters 

"And said delegates to be chosen in the same manner and 
proportion as their representatives in the second branch of the 
legislature are by this constitution to be chosen. ' ' (Massachusetts 
Constitution of 1780.) 

' ' To preserve an effectual adherence to the principles of the 
constitution and to correct any violations thereof, as well as to 
make such alterations therein as from experience may be found 
necessary, the general court shall, at the expiration of seven years 
from the time this constitution shall take effect, issue precepts, or 
direct them to be issued from the secretary' s office, to the several 
towns and incorporated places, to elect delegates to meet in con- 
vention for the purposes aforesaid : the said delegates to be chosen 
in the same manner and proportioned as the representatives to 
the general assembly ; provided that no alteration shall be made 
in this constitution before the same shall be laid before the towns 
and unincorporated places and approved by two-thirds of the 
qualified voters present and voting upon the question." (New 
Hampshire Constitution of 1784.) 

' ' That provision ought to be made for the amendment of the 
articles of union whenever it shall seem necessary, and that the 
assent of the national legislature ought not to be required thereto." 
(Randolph's Plan of 1787.) 

' ' If two-thirds of the legislatures of the States apply for the 
same, the legislature of the United States shall call a convention 
for the purpose of amending the Constitution ; or, should Congress, 
with the consent of two-thirds of each house, propose to the States 
amendments to the same, the agreement of two-thirds of the 
legislatures of the States shall be sufficient to make the said 
amendments parts of the Constitution. ' * (Pinckney' s Plan, 1 787.) 

** The congress, whenever two-thirds of both houses shall deem 
it necessary, shall propose amendments to this constitution, or, on 
the application of the legislatures of two-thirds of the several 
states, shall call a convention. for proposing amendments, which 
in either case shall be valid to all intents and purposes as part of 
this constitution when ratified by the legislatures of three-fourths 
of the several states, or by conventions in three-fourths thereof, as 
the one or the other mode of ratification may be proposed by the 

181 



Evolution of the Constitution 

congress ; provided that no amendment which may be made 
prior to the year one thousand eight hundred and eight shall in 
any manner affect the first and fourth clauses in the ninth section 
of the first article, and that no state, without its consent, shall be 
deprived of its equal suffrage in the senate." (The Constitution.) 

23. Prevention of Unconstitutional Laws. 

How to prevent violations of a written constitution 
must have been among the first questions that occurred 
to the early draughtsmen of those instruments. In the 
case of the colonial charters violations could be punished 
by forfeiture of the charter, and in many of the colonies the 
laws had to be submitted to the king for his approval. 
But when written constitutions were made by the peo- 
ple other safeguards were necessary, and the history of 
the experiments and struggles to invent something that 
would be self-acting is instructive. 

The first written constitution made by the people of 
this country was the Fundamental Orders of Connec- 
ticut of 1638, but no attempt was made in it to provide 
a remedy for infringement. The subject may have been 
discussed, — it is difficult to suppose that it was not dis- 
cussed, — but, as the problem was not even partially solved 
until one hundred and fifty years afterwards, the silence 
of our first constitution-makers can be readily excused. 

Five years afterwards, in 1643, when the New Eng- 
land Union was formed, its framers not only considered 
the question, but attempted a slight and cautious solution 
of it. If any one of the confederated colonies should 
break the articles of union, *' such breach of agreement, 
or injury," they said, "shall be duly considered and 
ordered by the commissioners." 

182 



Evolution from the Charters 

In other words, they gave the commissioners power to 
devise a remedy or punishment when a case of infringe- 
ment should arise, which was hardly a solution of the 
question, but rather a shifting of the solution to the 
shoulders of the commissioners. It was a beginning, 
nevertheless, for it at least gave the commissioners power 
to decide when an infringement had occurred, and the 
rest depended on their own skill and sagacity. It is, 
indeed, very interesting to see this first extremely care- 
ful step of our people in the solution of one of their 
most difficult problems, and I do not suppose that the 
most fanatical advocate of foreign sources would under- 
take to say that they were consciously imitating any- 
thing in the government of either England or Holland. 

The proprietors of East Jersey were the next people 
who were bold enough to face the difficulty, by providing 
in their Concessions of 1665 that the laws of the assem- 
bly should not be contrary to the Concessions, and 
" especially that they be not repugnant to the article for 
liberty of conscience." This seems very inadequate, but 
it was a move in the right direction, because it laid down 
the fundamental principle that the laws must conform to 
the constitution. 

Four years later, Locke, in his Carolina constitution 
of 1669, went farther, and provided that a law, when 
suspected of unconstitutionality on its passage, could be 
protested and must then be reconsidered ; and, as an 
additional safeguard, he arranged to have all laws cease 
operation at the end of a hundred years from their 
passage. But he was outdone by the proprietors of 
West Jersey, who in their Concessions of 1677 declared 

183 



Evolution of the Constitution 

that any member of the legislature who should move or 
incite any to move an infringement of the constitution 
should be proceeded against as a traitor. 

Neither Locke nor the proprietors of West Jersey 
succeeded in contriving anything that was of much 
avail, and the summary of the subsequent documents 
shows for the most part mere variations of previous 
attempts. The violent method of the proprietors of 
West Jersey was, however, moderate compared to Dray- 
ton's suggestions in his articles of confederation. If 
Congress violated the Constitution he would allow the 
States to secede, and if a State violated the Constitution 
it might be fined or placed under ban, and, if still con- 
tumacious, punished by "the utmost vigor of arms," 
— a method which certainly had the merit of thorough- 
ness. 

Among all these attempts there was only one which 
pointed towards the final goal, and this was in the Penn- 
sylvania Frame of 1683, where William Penn announced 
that if anything was procured contrary to the constitution 
it should be held of no force or effect. In other words, 
an unconstitutional law was to be void ; and if he had 
taken the next step and said that the judges should have 
power to declare it void when a case involving the law 
came before them, he would have solved the problem as 
we have solved it under the National Constitution. 

The framers of the Constitution took that step, but, 
although it was only one step, a hundred years' ex- 
perience was required after Penn's Frame of 1683 be- 
fore it could be taken. The way in which the power 
to declare laws unconstitutional and void was gradually 

184 



Evolution from the Charters 

given to the judiciary in the national government as 
well as in the governments of the States has been very 
fully discussed, of recent years, in Mr. Brinton Coxe's 
"Judicial Power and Unconstitutional Legislation" and 
in Professor Thayer's *' Origin and Scope of the Ameri- 
can Doctrine of Constitutional Law." 

What appears to be the first instance of such power 
in the judiciary is found in Virginia in the case of Josiah 
PhiHps, in the year 1778, but the case is so obscurely 
reported that we can only infer that the court believed 
themselves possessed of the power. In the next case, 
however, — Commonwealth vs. Caton, in 1782, also a 
Virginia case, — the court openly announce that they 
have "power to declare any resolution or act of the 
legislature, or either branch of it, to be unconstitutional 
and void." From this point the doctrine grew, and the 
cases, as originally collected by Mr. William M. Meigs, 
are very fully treated in Part II., Chapter XXIIL, of Mr. 
Coxe's "Judicial Power and Unconstitutional Legisla- 
tion." 

The doctrine was denied in some States, and it was 
not firmly established until long after the Constitution 
had gone into operation. But in the year 1787, when 
the Constitution was framed, it was sufficiently well 
known to be accepted as a suggestion, and Gerry, one 
of the members of the convention, said that " in some 
of the States the judges had actually set aside laws as 
being against the Constitution." 

The framers of the Constitution, of course, relied 
largely for its preservation on the good sense of the 
people, short terms of office, the mutual checking of the 

18$ 



Evolution of the Constitution 

two houses of Congress, and the President's veto. But 
they inserted a clause declaring that the judicial power 
should extend to all cases arising under the Constitu- 
tion, laws, and treaties, and another clause declaring 
that the Constitution and such laws as were made in 
pursuance of it should be the supreme law of the land. 
These clauses, coupled with the evident and implied 
necessity, have been held sufficient warrant for the courts 
to declare laws unconstitutional. (Marbury vs. Madison, 
I Cranch, 137 ; Coxe's '* Judicial Power and Unconstitu- 
tional Legislation," prefatory note, 5.) 

All we know of the origin of this doctrine of the power 
of the judiciary is that it first appeared in Virginia in an 
obscure form and gradually grew and spread. It seems 
to have originated, like our other forms of government, 
in circumstances and necessities, and was adopted for 
the reason that it was obviously convenient. It was not 
a common doctrine in Europe. On the contrary, most 
of the European governments expressly denied it. But, 
in order to show that it might possibly have a European 
source, Mr. Coxe has given at length and most learnedly 
all the instances of something similar in the ancient laws 
of England, France, Germany, and other countries. He 
gives not a particle of proof to show that the origina- 
tors of the doctrine in this country were guided by, or 
even knew of, any of these foreign forms, and, as they 
are all very recondite and ancient, it is not likely that 
they knew of them. 

In fact, in the Virginia case of Commonwealth vs. 
Caton (4 Call, 5), one of the judges expressly says that 
they could receive no light from foreign sources : 

186 



Evolution from the Charters 

"The constitutions of other governments in Europe or else- 
where seem to throw little light upon this question, since we have 
a written record of that which the citizens of this State have adopted 
as their social compact, and beyond which we need not extend our 
researches." (4 Call, 17.) 

When Gerry mentioned the subject in the convention 
which framed the Constitution, he referred not to foreign 
sources, but to the instances in our own country. In 
the Virginia case of Commonwealth vs. Caton the judges 
work out the problem by the natural process that any 
law violating the Constitution must necessarily be void, 
which was the same principle that William Penn had 
announced in his Frame of 1683. The Virginia judges 
merely take the further step of announcing that the 
judiciary must necessarily have the power of declaring 
such a law void in any case which brings it before them. 

Any violation of the union to be considered by the commis- 
sioners. (New England Union of 1643.) 

A proviso that the laws be not against the interest of the pro- 
prietors or contrary to the constitution. (Concessions of East Jer- 
sey, 1665.) 

Laws suspected of unconstitutionality may be protested and re- 
considered, and all laws shall cease their operation at the end of 
a hundred years. (Locke's Carolina Constitution of 1669.) 

The legislature not to make laws which contradict the consti- 
tution, and those members of the legislature who take part in 
making such laws to be punished as traitors. (Concessions of 
West Jersey of 1677.) 

Anything procured contrary to the constitution shall be void. 
(Pennsylvania Frame of April 2, 1683.) 

The above provision is repeated in the Pennsylvania Frame of 
1683 and in the Pennsylvania charter of privileges of 1701. 

No part of the constitution, with certain exceptions, ought ever 
to be violated. (Delaware Constitution of 1776.) 

187 



J 



Evolution of the Constitution 

The legislature cannot alter or infringe any part of the consti- 
tution, and a council of censors is provided to protect the consti- 
tution from violation. (Pennsylvania Constitution of 1776.) 

A proviso that the laws be not repugnant to the constitution. 
(Georgia Constitution of 1777.) 

The Vermont constitution of 1777 repeats substantially the pro- 
visions from the Pennsylvania constitution of 1776. 

The legislature shall not have power to alter or infringe any 
part of the constitution. (Rejected Constitution of Massachusetts 
of 1778.) 

If constitution violated by Congress, the States may secede. If 
a State violates the constitution, it may be fined and obedience 
compelled by force of arms. (Drayton's Articles of Confedera- 
tion, 1778.) 

A proviso that the laws be not unconstitutional. (Massachusetts 
Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776, with a change 
as to the number and manner of electing the censors. 

The national legislature to negative unconstitutional laws 
passed by the States, and the executive and some of the judges 
to be a council, with a modified veto on unconstitutional acts of 
Congress. (Randolph's Plan, 1787.) 

Laws pursuant to the Constitution to be the supreme law of the 
land. (Pinckney's Plan, 1787.) 

The judicial power to extend to all cases arising under the 
constitution and laws, and the constitution and laws made in 
pursuance of it to be the supreme law of the land. (The Con- 
stitution.) 

24. Patents and Inventions. 

"That the governor and provincial council shall .... en- 
courage and reward the authors of useful sciences and laudable 
inventions in the said province." (Pennsylvania Frame of April 
2. 1683.) 

188 



Evolution from the Charters 

The above provision is repeated in the Pennsylvania Frame of 
1683 and in the Pennsylvania Frame of 1696. 

" The congress shall have power to promote the progress of sci- 
ence and useful arts by securing for limited times to authors and 
inventors the exclusive right to their respective writings and dis- 
coveries." (The Constitution.) 

25. Naturalization. 

"And We do, for Us, our Heirs and Successors, further give 
and grant to the said Treasurer and Company, or their Successors 
forever, that the said Treasurer and Company, or the greater Part 
of them for the Time being, so in a full and general Court assem- 
bled as aforesaid, shall and may from Time to Time, and at all 
times forever hereafter, elect, choose and admit into their Com- 
pany, and Society, any Person or Persons, as well Strangers and 
Aliens born in any Part beyond the Seas wheresoever, being in 
Amity with us, as our natural Liege Subjects born in any our 
Realms and Dominions : And that all such Persons so elected, 
chosen, and admitted to be of the said Company as aforesaid, shall 
thereupon be taken, reputed, and held, and shall be free Members 
of the said Company, and shall have, hold, and enjoy all and 
singular Freedoms, Liberties, Franchises, Privileges, Immunities, 
Benefits, Profits, and Commodities whatsoever, to the said Com- 
pany in any Sort belonging or appertaining, as fully, freely and 
amply as any other Adventurers now being, or which hereafter 
at any Time shall be of the said Company, hath, have, shall, 
may, might, or ought to have and enjoy the same to all Intents 
and Purposes whatsoever." (Virginia Charter ofi6ii-i2.) 

" By act as aforesaid to give unto all strangers as to them shall 
seem meet a naturalization, and all such freedoms and privileges 
within the said province as to his Majesty's subjects do of • right 
belong, they swearing or subscribing as aforesaid, which said 
strangers so naturalized and privileged shall be in all respects ac- 
counted in the said province as the king's natural subjects." 
(Concessions of East Jersey, 1665.) 

"Whatsoever alien shall, in this form, before any precinct 

189 



Evolution of the Constitution 

register, subscribe these fundamental constitutions, shall be thereby 
naturalized." (Locke's Carolina Constitution of 1669.) 

" The legislature of the United States shall have the power to 
establish uniform rules of naturalization." (Pinckney's Plan, 

1787.) 

" The congress shall have power to establish a uniform rule 
of naturalization. * ' (The Constitution.) 

26. Religious Liberty. 

/ The quotations under this section show the begin- 

ning of religious liberty and the ideas that have at 
different times prevailed as to exactly what religious 
liberty was. 

In colonial times and for some time after the Revolu- 
tion a large part of our people were convinced that the 
Roman Church was unalterably opposed to both civil 
and religious liberty, and that it would destroy them 
both if opportunity offered. Accordingly we find that 
liberty of conscience did not always include papists, as 
they were called, and not infrequently in the constitu- 
tions of I "jy^ the members of the Roman obedience are 
excluded from holding public office. The most sweeping 
and carefully worded provision of this sort wa-s in the 
North Carolina constitution of 1776, which declared 
that no person could hold office who denied the being 
of God or the truth of the Protestant religion, or who 
held '* religious principles incompatible with the freedom 
and safety of the State." 

Religious liberty did not always include what some 
have called "irreligious liberty," and we find that in 
several instances atheists and infidels are left without 
protection. Perhaps the most curious provision is in 

190 



Evolution from the Charters 

the New Hampshire commission of 1680, which allows 
liberty of conscience to all Protestants, and commands 
that the Church of England be ''particularly counte- 
nanced and encouraged." 

' ' That our royall will and pleasure is, that noe person within 
the sayd colonye, at any tyme hereafter, shall bee any wise mo- 
lested, punished, disquieted, or called in question, for any differ- 
ences in opinione in matters of religion, and doe not actually 
disturb the civill peace of our sayd colony ; but that all and everye 
person and persons may, from tyme to tyme, and at all tymes 
hereafter, freelye and fully e have and enjoye his and theire owne 
judgments and consciences, in matters of religious concernments, 
throughout the tract of lande hereafter mentioned ; they behaving 
themselves peaceablie and quietlie, and not useing this libertie 
to lycentiousnesse and profanenesse, nor to the civill injurye or 
outward disturbeance of others ; any lawe, statute, or clause, 
therein contayned, or to bee contayned, usage or custome of this 
realme, to the contrary hereof, in any wise, notwithstanding." 
(Rhode Island Charter of 1663.) 

" That no person qualified as aforesaid within the said province 
at any time shall be anyways molested, punished, disquieted or 
called in question for any difference in opinion or practice in 
matters of religious concernments, who do not actually disturb 
the civil peace of the said province, but that all and every such 
person and persons may from time to time and at all times truly 
and fully have and enjoy his and their judgments and consciences 
in matters of religion throughout all the said province ; they be- 
having themselves peaceably and quietly and not using this liberty 
to licentiousness, nor to the civil injury or outward disturbance of 
others ; any law, statute, or clause contained or to be contained, 
usage or custom of this realm of England to the contrary thereof 
in any wise notwithstanding." (Concessions of East Jersey, 
1665.) 

' ' No person whatsoever shall disturb, molest, or persecute 
another for his speculative opinions in religion, or his way of 
worship." (Locke's Carolina Constitution of 1669.) 

191 



Evolution of the Constitution 

" That no men, nor number of men upon earth, hath power or 
authority to rule over men's consciences in rehgious matters ; 
therefore it is consented, agreed and ordained, that no person or 
persons whatsoever within the said province, at any time or times 
hereafter, shall be any ways upon any pretence whatsoever, called 
in question, or in the least punished or hurt, either in person, 
estate, or privilege, for the sake of his opinion, judgment, faith or 
worship towards God in matters of religion. But that all and 
every such person and persons may from time to time, and at all 
times, freely and fully have and enjoy his and their judgments 
and the exercise of their consciences in matters of religious wor- 
ship throughout all the said province." (Concessions of West 
Jersey, 1677.) 

"We do hereby require and comand that liberty of con- 
science shall be allowed unto all protestants ; that such especially 
as shall be conformable to y^ rites of y* Church of Eng^ shall be 
particularly countenanced and encouraged." (Commission for 
New Hampshire of 1680.) 

' ' We do by these presents for us, our heirs and successors, 
grant, establish and ordain that forever hereafter there shall be 
liberty of conscience allowed in the worship of God to all Chris- 
tians (except papists) inhabiting, or which shall inhabit, or be 
resident within our said province or territory." (Massachusetts 
Charter of 1691.) 

' ' That no Person or Persons, inhabiting in this Province or 
Territories, who shall confess and acknowledge One almighty God, 
the Creator, Upholder and Ruler of the World ; and profess him 
or themselves obliged to live quietly under the Civil Government, 
shall be in any Case molested or prejudiced, in his or their Person 
or Estate, because of his or their conscientious Persuasion or Prac- 
tice, nor be compelled to frequent or maintain any religious Wor- 
ship, Place or Ministry, contrary to his or their Mind, or to do or 
suffer any other Act or Thing, contrary to their religious Per- 
suasion. 

' ' AND that all Persons who also profess to believe in Jesus 
Christ, the Saviour of the World, shall be capable (notwithstand- 
ing their other Persuasions and Practices in Point of Conscience 

192 



Evolution from the Charters 

and Religion) to serve this Government in any Capacity, both 
legislatively and executively, he or they solemnly promising, when 
lawfully required, Allegiance to the King as Sovereign, and 
Fidelity to the Proprietary and Governor, and taking the Attests 
as now established by the Law made at New- Castle, in the Year 
One Thousafid and Seven Hundred, entitled, An Act directing 
the Attests of several Officers and Ministers, as now amended and 
confirmed this present Assembly." (Pennsylvania Charter of 
Privileges of 1701.) 

' ' And for the greater ease and encouragement of our loving 
subjects and such others as shall come to inhabit in our said 
colony, we do by these presents, for us, our heirs and successors, 
grant, establish and ordain, that forever hereafter there shall be 
a liberty of conscience allowed in the worship of God to all per- 
sons inhabiting, or which shall inhabit or be resident within our 
said province, and that all such persons, except papists, shall 
have a free exercise of religion, so they be contented with the 
quiet and peaceable enjoyment of the same, not giving offence or 
scandal to the government." (Georgia Charter of 1732.) 

"That religion, or the duty which we owe to our Creator, and 
the manner of discharging it, can be directed only by reason and 
conviction, not by force or violence ; and therefore all men are 
equally entitled to the free exercise of religion, according to the 
dictates of conscience ; and that it is the mutual duty of all to 
practice Christian forbearance, love, and charity towards each 
other." (Virginia Bill of Rights of 1776.) 

" That no person shall ever, within this Colony, be deprived of 
the inestimable privilege of worshipping Almighty God in a man- 
ner agreeable to the dictates of his own conscience ; nor, under 
any pretence whatever, be compelled to attend any place of wor- 
ship, contrary to his own faith and judgment ; nor shall any person- 
within this Colony ever be obliged to pay tithes, taxes, or any- 
other rates for the purpose of building or repairing any other 
church or churches, place or places of worship, or for the main- 
tenance of any minister or ministry, contrary to what he believes 
to be right or has deliberately or voluntarily engaged himself to 
perform. 

13 193 



Evolution of the Constitution 

' ' That there shall be no establishment of any one religious sect 
in this Province in preference to another ; and that no Protestant 
inhabitant of this Colony shall be denied the enjoyment of any 
civil right, merely on account of his religious principles ; but that 
all persons, professing a belief in the faith of any Protestant sect, 
who shall demean themselves peaceably under the government, 
as hereby established, shall be capable of being elected into any 
office of profit or trust, or being a member of either branch of the 
Legislature, and shall fully and freely enjoy every privilege and 
immunity enjoyed by others their fellow-subjects." (New Jersey 
Constitution of 1776.) 

" There shall be no establishment of any one religious sect in 
this State in preference to another ; and no clergyman or preacher 
of the gospel, of any denomination, shall be capable of holding 
any civil office in this State, or of being a member of either of the 
branches of the legislature, while they continue in the exercise of 
the pastoral function.'' (Delaware Constitution of 1776.) 

' ' That all men have a natural and unalienable right to worship 
Almighty God according to the dictates of their own consciences 
and understanding : And that no man ought or of right can be 
compelled to attend any religious worship, or erect or support 
any place of worship, or maintain any ministry, contrary to, or 
against, his own free will and consent : Nor can any man, who 
acknowledges the being of a God, be justly deprived or abridged 
of any civil right as a citizen, on account of his religious sentiments 
or peculiar mode of religious worship : And that no authority can 
or ought to be vested in, or assumed by any power whatever, that 
shall in any case interfere with, or in any manner controul, the 
right of conscience in the free exercise of religious worship." 
(Pennsylvania Constitution of 1776.) 

' ' That, as it is the duty of every man to worship God in such 
manner as he thinks most acceptable to him, all persons profess- 
ing the Christian religion are equally entitled to protection in their 
religious liberty ; wherefore no person ought by any law to be 
molested in his person or estate on account of his religious per- 
suasion or profession, or for his religious practice ; unless, under 
colour of religion, any man shall disturb the good order, peace, or 

194 



Evolution from the Charters 

safety of the State, or shall infringe the laws of morality, or injure 
others, in their natural, civil, or religious rights ; nor ought any 
person to be compelled to frequent or maintain, or contribute, 
unless on contract, to maintain any particular place of worship, or 
any particular ministry ; yet the Legislature may, in their discretion, 
lay a general and equal tax for the support of the Christian re- 
ligion ; leaving to each individual the power of appointing the 
payment over of the money, collected from him, to the support 
of any particular place of worship or minister, or for the benefit 
of the poor of his own denomination, or the poor in general of 
any particular county : but the churches, chapels, glebes, and all 
other property now belonging to the church of England, ought to 
remain to the church of England forever. And all acts of Assem- 
bly, lately passed, for collecting monies for building or repairing 
particular churches or chapels of ease, shall continue in force and 
be executed, unless the Legislature shall, by act, supersede or 
repeal the same : but no county court shall assess any quantity of 
tobacco, or sum of money, hereafter, on the application of any 
vestry-men or church-wardens ; and every encumbent of the 
church of England, who hath remained in his parish, and per- 
formed his duty, shall be entitled to receive the provision and 
support established by the act entitled ' An act for the support of 
the clergy of the church of England, in this Province,' till the 
November court of this present year, to be held for the county in 
which his parish shall lie, or partly lie, or for such time as he 
hath remained in his parish, and performed his duty." (Mary- 
land Declaration of Rights of 1776.) 

"That all men have a natural and unalienable right to wor- 
ship Almighty God according to the dictates of their own con- 
sciences 

' ' That no person, who shall deny the being of God or the 
truth of the Protestant religion, or the divine authority either of 
the Old or New Testaments, or who shall hold religious principles 
incompatible with the freedom and safety of the State, shall be 
capable of holding any office or place of trust or profit in the civil 
department within this State 

' ' That there shall be no establishment of any one religious 

195 



Evolution of the Constitution 

church or denomination in this State, in preference to any other ; 
neither shall any person, on any pretence whatsoever, be com- 
pelled to attend any place of worship contrary to his own faith or 
judgment, nor be obliged to pay for the purchase of any glebe, or 
the building of any house of worship, or for the maintenance of 
any minister or ministry, contrary to what he believes right, or 
has voluntarily and personally engaged to perform ; but all per- 
sons shall be at liberty to exercise their own mode of worship : — 
Provided, That nothing herein contained shall be construed to 
exempt preachers of treasonable or seditious discourses from 
legal trial and punishment." (North Carolina Constitution of 
1776.) 

' ' All persons whatever shall have the free exercise of their 
religion, provided it be not repugnant to the peace and safety of 
the State, and shall not, unless by consent, support any teacher 
or teachers except those of their own profession." (Georgia 
Constitution of 1777.) 

"And whereas we are required, by the benevolent principles 
of rational liberty, not only to expel civil tyranny, but also to 
guard against that spiritual oppression and intolerance wherewith 
the bigotry and ambition of weak and wicked priests and princes 
have scourged mankind, this convention doth further, in the 
name and by the authority of the good people of this State, ordain, 
determine, and declare, that the free exercise and enjoyment of 
religious profession and worship, without discrimination or prefer- 
ence, shall forever hereafter be allowed, within this State, to all 
mankind : Provided, That the liberty of conscience, hereby 
granted, shall not be so construed as to excuse acts of licentious- 
ness, or justify practices inconsistent with the peace or safety of 
I this State." (New York Constitution of 1777.) 

' ' That all men have a natural and unalienable right to wor- 
ship Almighty God, according to the dictates of their own con- 
sciences and understanding, regulated by the word of God ; and 
that no man ought, or of right can be compelled to attend any 
religious worship, or erect or support any place of worship, or 
maintain any minister, contrary to the dictates of his conscience ; 
nor can any man who professes the Protestant religion be justly 

196 



Evolution from the Charters 

deprived or abridged of any civil right, as a citizen, on account 
of his religious sentiment, or peculiar mode of religious worship, 
and that no authority can, or ought to be vested in, or assumed 
by, any power whatsoever, that shall, in any case, interfere with, 
or in any manner controul, the rights of conscience, in the free 
exercise of religious worship : nevertheless, every sect or denomi- 
nation of people ought to observe the Sabbath, or the Lord' s day, 
and keep up, and support, some sort of religious worship, which 
to them shall seem most agreeable to the revealed will of God." 
(Vermont Constitution of 1777.) 

" No person, unless of the Protestant religion, shall be gov- 
ernor, lieutenant-governor, a member of the senate or of the 
house of representatives, or hold any judiciary employment 
within this State 

"The free exercise and enjoyment of religious profession and 
worship shall forever be allowed to every denomination of Prot- 
estants within this State." (Rejected Constitution of Massa- 
chusetts of 1778.) 

' ' That all persons and religious societies who acknowledge 
that there is one God, and a future state of rewards and punish- 
ments, and that God is publicly to be worshipped, shall be freely 
tolerated. The Christian Protestant religion shall be deemed, 
and is hereby constituted and declared to be, the established 
religion of this State. That all denominations of Christian Prot- 
estants in this State, demeaning themselves peaceably and faith- 
fully, shall enjoy equally religious and civil privileges. 

' ' No person shall be eligible to a seat in the said senate unless 
he be of the Protestant religion. No person shall be eligible to 
sit in the house of representatives unless he be of the Protestant 
religion." (South Carolina Constitution of 1778.) 

"The future legislature of this State shall make no laws to 
infringe the rights of conscience or any other of the natural, 
unalienable rights of men, or contrary to the laws of God or 
against the Protestant religion 

' ' All the male inhabitants of the State of lawful age, paying 
taxes and professing the Protestant religion, shall be deemed legal 
voters in choosing councillors and representatives." [A property 

197 



Evolution of the Constitution 

qualification was also added.] (Rejected Constitution of New 
Hampshire of 1778.) 

" It is the right as well as the duty of all men in society, pub- 
licly and at stated seasons, to worship the Supreme Being, the 
great Creator and Preserver of the universe. And no subject 
shall be hurt, molested, or restrained, in his person, liberty, or 
estate, for worshipping God in the manner and season most agree- 
able to the dictates of his own conscience, or for his religious pro- 
fession or sentiments, provided he doth not disturb the public 
peace or obstruct others in their religious worship. . . . 

' ' Therefore, to promote their happiness and to secure the good 
order and preservation of their government, the people of this com- 
monwealth have a right to invest their legislature with power to 
authorize and require, and the legislature shall, from time to 
time, authorize and require the several towns, parishes, precincts, 
and other bodies-politic or religious societies to make suitable 
provision, at their own expense, for the institution of the public 
worship of God and for the support and maintenance of public 
Protestant teachers of piety, religion, and morality in all cases 
where such provision shall not be made voluntarily. . . . 

' ' And the people of this commonwealth have also a right to, 
and do, invest their legislature with authority to enjoin upon all 
the subjects an attendance upon the instructions of the public 
teachers aforesaid, at stated times and seasons, if there be any 
on whose instructions they can conscientiously and conveniently 
attend." (Massachusetts Constitution of 1780.) 

" Every individual has a natural and unalienable right to wor- 
ship GOD according to the dictates of his own conscience and 
reason ; and no subject shall be hurt, molested, or restrained in 
his person, liberty or estate for worshipping GOD, in the manner 
and season most agreeable to the dictates of his own conscience, 
or for his religious profession, sentiments or persuasion ; provided 
he doth not disturb the public peace, or disturb others, in their 
religious worship. 

' ' As morality and piety, rightly grounded on evangelical prin- 
ciples, will give the best and greatest security to government, and 
will lay in the hearts of men the strongest obligations to due sub- 

198 



Evolution from the Charters 

jection ; and as the knowledge of these is most Hkely to be propa- 
gated through a society by the institution of the pubhc worship of 
the DEITY, and of pubhc instruction in morahty and rehgion ; 
therefore, to promote those important purposes, the people of this 
state have a right to impower, and do hereby fully impower the 
legislature to authorize from time to time, the several towns, 
parishes, bodies-corporate, or religious societies within this state, 
to make adequate provision at their own expence, for the support 
and maintenance of public Protestant teachers of piety, religion 
and morality 

"That no person shall be capable of being elected a senator 
who is not of the Protestant religion." (New Hampshire Consti- 
tution of 1784.) 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" The legislature of the United States shall pass no law on the 
subject of religion." (Pinckney's Plan, 1787.) 

"No religious test shall ever be required as a qualification to 
any office or public trust under the United States." (The Consti- 
tution.) 

"Congress shall make no law respecting an establishment of 
religion or prohibiting the free exercise thereof. ' ' (First Amend- 
ment to the Constitution.) 

27. Seizures and Searches. 

"That general warrants, whereby an officer or messenger may -J 
be commanded to search suspected places without evidence of a 
fact committed, or to seize any person or persons not named, or 
whose offence is not particularly described and supported by evi- 
dence, are grievous and oppressive, and ought not to be granted." 
(Virginia Bill of Rights of 1776.) 

" That the people have a right to hold themselves, their houses, 
papers, and possessions free from search or seizure, and therefore 
warrants without oaths or affirmations first made, affording a suffi- 
cient foundation for them, and whereby any officer or messenger 
may be commanded or required to search suspected places, or to 

199 



Evolution of the Constitution 

seize any person or persons, his or their property, not particularly 
described, are contrary to that right, and ought not to be granted," 
(Pennsylvania Constitution of 1776.) 

*• That all warrants, without oath or affirmation, to search sus- 
pected places, or to seize any person or property, are grievous 
and oppressive ; and all general warrants — to search suspected 
places, or to apprehend suspected persons, without naming or 
describing the place, or the person in special — are illegal, and 
ought not to be granted." (Maryland Declaration of Rights of 

' ' That general warrants — whereby an officer or messenger 
may be commanded to search suspected places, without evidence 
of the fact committed, or to seize any person or persons, not 
named, whose offences are not particularly described, and sup- 
ported by evidence — are dangerous to liberty, and ought not to be 
granted." (North Carolina Declaration of Rights of 1776.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" Every subject has a right to be secure from all unreasonable 
searches and seizures of his person, his houses, his papers, and 
all his possessions. All warrants, therefore, are contrary to this 
right, if the cause or foundation of them be not previously sup- 
ported by oath or affirmation, and if the order in the warrant to a 
civil officer, to make search in suspected places, or to arrest one 
or more suspected persons, or to seize their property, be not ac- 
companied with a special designation of the persons or objects of 
search, arrest, or seizure ; and no warrant ought to be issued but 
in cases, and with the formalities, prescribed by the laws." (Mas- 
sachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" The right of the people to be secure in their persons, houses, 
papers, and effects against unreasonable searches and seizures 
shall not be violated, and no warrants shall issue but upon prob- 
able cause, supported by oath or affirmation and particularly, 

200 



Evolution from the Charters 

describing the place to be searched and the persons or things to 
be seized." (Fourth Amendment to the Constitution.) 

28. Trial by Jury. /-^t-;!^vM^l^v,. ^ 

"That no proprietor, freeholder, or inhabitant of the said prov- 
ince of West New Jersey shall be deprived or condemned of life, 
limb, liberty, estate, property, or any ways hurt in his or their 
privileges, freedoms, or franchises, upon any account whatsoever, 
without a due trial and judgment passed by twelve good and 
lawful men of his neighborhood first had ; and that in all causes 
to be tried and in all trials the person or persons arraigned may 
except against any of the said neighborhood, without any reason 
rendered (not exceeding thirty-five), and, in case of any valid rea- 
son alleged, against every person nominated for that service. . . . 

' ' That the trials of all causes, civil and criminal, shall be 
heard and decided by the verdict or judgment of twelve honest 
men of the neighborhood, only to be summoned and presented 
by the sheriff of that division or propriety where the fact or tres- 
pass is committed." (Concessions of West Jersey of 1677.) 

"That all trials shall be by twelve men, and, as near as may 
be, peers or equals, and of the neighborhood, and men without 
just exception ; in cases of life, there shall be first twenty-four 
returned by the sheriffs, for a grand inquest, of whom twelve, at 
least, shall find the complaint to be true ; and then the twelve 
men, or peers, to be likewise returned by the sheriff, shall have 
the final judgment. But reasonable challenges shall be always 
admitted against the said twelve men, or any of them." (Penn- 
sylvania Laws Agreed upon in England, 1682.) 

"That in all capital or criminal prosecutions a man hath a 
right to a speedy trial by an impartial jury of twelve men of his 
vicinage, without whose unanimous consent he cannot be found 
guilty 

* ' That in controversies respecting property, and in suits be- 
tween man and man, the ancient trial by jury is preferable to any 
other, and ought to be held sacred." (Virginia Bill of Rights of 
1776.) 

"That the inestimable right of trial by jury shall remain con- 

201 



Evolution of the Constitution 

firmed as a part of the law of this colony without repeal forever." 
(New Jersey Constitution of 1776.) 

' ' That in all prosecutions for criminal offences a man hath a 
right to a speedy public trial by an impartial jury of the country, 
without the unanimous consent of which jury he cannot be found 
guilty." (Pennsylvania Constitution of 1776.) 

" That in all criminal prosecutions every man hath a right to a 
speedy trial by an impartial jury, without whose unanimous con- 
sent he ought not to be found guilty." (Maryland Declaration 
of Rights of 1776.) 

" That no freeman shall be convicted of any crime, but by the 
unanimous verdict of a jury of good and lawful men, in open 
court, as heretofore used 

"That in all controversies at law, respecting property, the 
ancient mode of trial, by jury, is one of the best securities of the 
rights of the people, and ought to remain sacred and inviolable." 
(North Carolina Declaration of Rights of 1776.) 

" Trial by jury to remain inviolate forever." (Georgia Consti- 
tution of 1777.) 

" Trial by jury in all cases in which it hath heretofore been 
used in the colony of New York shall be established and remain 
inviolate forever." (New York Constitution of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

"And the inestimable right of trial by jury shall remain con- 
firmed as part of this constitution forever." (Rejected Constitu- 
tion of Massachusetts of 1778.) 

"The right of trial by jury in all cases as heretofore used in 
this State shall be preserved inviolate forever. " (Rejected Con- 
stitution of New Hampshire of 1778.) 

* ' In all controversies concerning property, and in all suits 
between two or more persons, except in cases in which it has 
heretofore been otherways used and practised, the parties have a 
right to a trial by jury ; and this method of procedure shall be 
held sacred, unless, in causes arising on the high seas, and such 
as relate to mariners' wages, the legislature shall hereafter find it 
necessary to alter it." (Massachusetts Constitution of 1780.) 

202 



Evolution from the Charters 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

" In all criminal prosecutions the accused shall enjoy the right 
to a speedy and public trial by an impartial jury of the State and 
district wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him ; to have compulsory process 
for obtaining witnesses in his favor, and to have the assistance of 
counsel for his defence." (Sixth Amendment to the Constitu- 
tion.) 

" In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
court of the United States than according to the rules of the 
common law." (Seventh Amendment to the Constitution.) 

29. Prisoners to have Counsel and Witnesses. y 

"That all criminals shall have the same privileges of witnesses 
and council as their prosecutors." (Pennsylvania Charter of 
Privileges of 170 1.) 

"That in all capital or criminal prosecutions a man hath a 
right to demand the cause and nature of his accusation, to be 
confronted with the accusers and witnesses, to call for evidence 
in his favor ; nor can he be compelled to give evidence against 
himself." (Virginia Bill of Rights of 1776.) 

" That in all prosecutions for criminal offences, a man hath a 
right to be heard by himself and his council, to demand the cause 
and nature of his accusation, to be confronted with the witnesses, 
to call for evidence in his favor ; nor can he be compelled to give 
evidence against himself. * ' (Pennsylvania Constitution of 1776.) 

" That, in all criminal prosecutions, every man hath a right to 
be informed of the accusation against him ; to have a copy of the 
indictment or charge in due time (if required) to prepare for his 
defence ; to be allowed counsel ; to be confronted with the wit- 
nesses against him ; to have process for his witnesses ; to ex- 

203 



Evolution of the Constitution 

amine the witnesses, for and against him, on oath." (Maryland 
Declaration of Rights of 1776.) 

' ' That, in all criminal prosecutions, every man has a right to 
be informed of the accusation against him, and to confront the 
accusers and witnesses with other testimony, and shall not be 
compelled to give evidence against himself." (North Carolina 
Declaration of Rights of 1776.) 

' * And it is ftcrther ordained, That in every trial on impeach- 
ment, or indictment for crimes or misdemeanors, the party im- 
peached or indicted shall be allowed counsel, as in civil actions." 
(New York Constitution of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" And on every trial, as wel> on impeachments as others, the 
party accused shall be allowed counsel." (South Carolina Con- 
stitution of 1778.) 

" No subject shall be held to answer for any crime or offence 
until the same is fully and plainly, substantially and formally, 
described to him ; or be compelled to accuse, or furnish evidence 
against himself; and every subject shall have a right to produce 
all proofs that may be favorable to him ; to meet the witnesses 
against him face to face, and to be fully heard in his defence 
by himself, or his counsel at his election. ' * (Massachusetts Con- 
stitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' Nor shall [any person] be compelled in any criminal case 
to be a witness against himself." (Fifth Amendment to the 
Constitution.) 

" In all criminal prosecutions the accused shall enjoy the right 
to be informed of the nature and cause of the accusation ; to be 
confronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defence." (Sixth Amendment to 
the Constitution.) 

204 



Evolution from the Charters 

30. Excessive Bail and Fines and Cruel Punish- 
ments. 

"That all fines shall be moderate." (Pennsylvania Laws 
Agreed upon in England, 1682.) 

"That excessive bail ought not to be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted." 
(Virginia Bill of Rights of 1776.) 

' ' Excessive bail shall not be exacted for bailable offences, and 
all fines shall be moderate." (Pennsylvania Constitution of 1776.) 

' ' That sanguinary laws ought to be avoided, as far as is con- 
sistent with the safety of the State : and no law, to inflict cruel 
and unusual pains and penalties, ought to be made in any case, 
or at any time hereafter. . . . 

"That excessive bail ought not to be required, nor excessive 
fines imposed, nor cruel or unusual punishments inflicted, by the 
courts of law." (Maryland Declaration of Rights of 1776.) 

"That excessive bail should not be required, nor excessive 
fines imposed, nor cruel or unusual punishments inflicted." 
(North Carolina Constitution of 1776.) 

' * Excessive fines shall not be levied, nor excessive bail de- 
manded." (Georgia Constitution of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

"No magistrate or court of law shall demand excessive bail 
or sureties, impose excessive fines, or inflict cruel or unusual pun- 
ishments." (Massachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

" Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted." (Eighth 
Amendment to the Constitution.) 

31. Twice in Jeopardy. 
" No subject* shall be liable to be tried after an acquittal for 

*The use of the word subject instead of citizen three years after the 
battle of Yorktown and eight years after the Declaration of Independence 

205 



J 



Evolution of the Constitution 

the same crime or offence." (New Hampshire Constitution of 

1784.) ^ 

"Nor shall any persoa be subject for the same offence to be 
twice put in jeopardy of life or limb." (Fifth Amendment to the 
Constitution.) '^ 

32. Freedom of the Press. 

• • That the freedom of the press is one of the great bulwarks 
of liberty, and can never be restrained but by despotic govern- 
ments." (Virginia Bill of Rights of 1776.) 

"That the people have a right to freedom of speech, and of 
writing, and publishing their sentiments ; therefore the freedom 
of the press ought not to be restrained." (Pennsylvania Consti- 
tution of 1776.) 

" That the liberty of the press ought to be inviolably pre- 
served." (Maryland Declaration of Rights of 1776.) 

' ' That the freedom of the press is one of the great bulwarks 
of liberty, and therefore ought never to be restrained. ' ' (North 
Carolina Declaration of Rights of 1776.) 

" Freedom of the press to remain inviolate forever." (Georgia 
Constitution of 1777.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' That the liberty of the press be inviolably preserved. ' * 
(South Carolina Constitution of 1778.) 

• ' The liberty of the press is essential to the security of freedom 
in a State ; it ought not, therefore, to be restrained in this com- 
monwealth." (Massachusetts Constitution of 1780.) 

" The liberty of the press is essential to the security of freedom 
in a State ; it ought, therefore, to be inviolably preserved." (New 
Hampshire Constitution of 1784.) 

The Vermont constitution of 1786 repeats substantially the 

seems curious nowadays. But the word was used for a long time after 
the Revolution to describe the people of a republic as well as those who 
lived under a monarchy. They were all alike considered as subject to 
the government and laws. 

206 



Evolution from the Charters 

provision given above from the Pennsylvania constitution of 
1776. 

' ' The legislature of the United States shall pass no law touch- 
ing or abridging the liberty of the press." (Pinckney's Plan of 

1787.) 

" Congress shall make no law abridging the freedom of speech 
or of the press. ' ' (First Amendment to the Constitution.) 



33. Right to Petition. 



V 



" That it shall be lawful for any person or persons during the 
session of any general free assembly in that province to address, 
remonstrate Or declare any suffering, danger or grievance, or to 
propose, tender or request any privilege, profit or advantage to 
the said province, they not exceeding the number of one hundred 
persons." (Concessions of West Jersey of 1677.) 

' ' That the people have a right to assemble together, to con- 
sult for their common good, to instruct their representatives, and 
to apply to the legislature for redress of grievances, by address, 
petition, or remonstrance." (Pennsylvania Constitution of 1776.) 

' ' That every man hath a right to petition the Legislature, for 
the redress of grievances, in a peaceable and orderly manner." 
(Maryland Declaration of Rights of 1776.) 

' ' That the people have a right to assemble together, to consult 
for their common good, to instruct their Representatives, and to 
apply to the Legislature, for redress of grievances." (North 
Carolina Declaration of Rights of 1776.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' The people have a right, in an orderly and peaceable man- 
ner, to assemble to consult upon the common good ; give instruc- 
tions to their representatives, and to request of the legislative 
body, by the way of addresses, petitions, or remonstrances, re- 
dress of the wrongs done them, and of the grievances they suffer." 
(Massachusetts Constitution of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

207 



Evolution of the Constitution 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" Congress shall make no law abridging the right of the people 
peaceably to assemble, and to petition the government for a 
redress of grievances." (First Amendment to the Constitution.) 

34. Right to Bear Arms. 

*'That the people have a right to bear arms for the defence 
of themselves and the State." (Pennsylvania Constitution of 

1776.) 

"That the people have a right to bear arms for the defence 
of the State." (North Carolina Declaration of Rights of 1776.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' The people have a right to keep and bear arms for the com- 
mon defence." (Massachusetts Constitution of 1780.) 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

' ' A well-regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall 
not be infringed." (Second Amendment to the Constitution.) 

35. Militia Necessary; Military Subordinate. 

" That a well-regulated militia, composed of the body of the 
people, trained to arms, is the proper, natural, and safe defence 
of a free state ; that standing armies, in time of peace, should be 
avoided, as dangerous to liberty ; and that in all cases the mili- 
tary should be under strict subordination to, and governed by, 
the civil power." (Virginia Bill of Rights of 1776.) 

' ' As standing armies in the time of peace are dangerous to 
liberty, they ought not to be kept up ; And that the military 
should be kept under strict subordination to, and governed by, 
the civil power." (Pennsylvania Constitution of 1776.) 

"That a well-regulated militia is the proper and natural de- 
fence of a free government. 

' ' That standing armies are dangerous to liberty, and ought 
not to be raised or kept up, without consent of the Legislature. 

208 



Evolution from the Charters 

"That in all cases, and at all times, the military ought to be 
under strict subordination to and control of the civil power." 
(Maryland Declaration of Rights of 1776.) 

" As standing armies in time of peace are dangerous to lib- 
erty, they ought not to be kept up ; and that the military should 
be kept under strict subordination to, and governed by, the civil 
power." (North Carolina Declaration of Rights of 1776.) 

The Vermont constitution of 1777 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

" That the militar)'^ be subordinate to the civil power of the 
State." (South Carolina Constitution of 1778.) 

"And as in time of peace armies are dangerous to liberty, 
they ought not to be maintained without the consent of the legis- 
lature ; and the military power shall always be held in an exact 
subordination to the civil authority and be governed by it." 
(Massachusetts Constitution of 1780.) 

"A well-regulated militia is the proper, natural, and sure de- 
fence of a state. 

' ' Standing armies are dangerous to liberty, and ought not to 
be raised or kept up without the consent of the legislature. 

" In all cases, and at all times, the military ought to be under 
strict subordination to, and governed by, the civil power. ' ' (New 
Hampshire Constitution of 1784.) 

The Vermont constitution of 1786 repeats the provision given 
above from the Pennsylvania constitution of 1776. 

"A well-regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall 
not be infringed." (Second Amendment to the Constitution.) 

36. Quartering Soldiers in Time of Peace. 

" That no soldier ought to be quartered in any house, in time 
of peace, without the consent of the owner ; and in time of war, 
in such manner only, as the Legislature shall direct." (Mary- 
land Declaration of Rights of 1776.) 

" In time of peace, no soldier ought to be quartered in any 
house without the consent of the owner ; and in time of war, such 
quarters ought not to be made but by the civil magistrate, in a 
14 209 



Evolution of the Constitution 

manner ordained by the legislature. ' * (Massachusetts Constitu- 
tion of 1780.) 

The above provision from the Massachusetts constitution of 
1780 is substantially repeated in the New Hampshire constitution 
of 1784. 

" No soldier shall, in time of peace, be quartered in any house 
without the consent of the owner ; nor in time of war but in a 
manner to be prescribed by law." (Third Amendment to the 
Constitution.) 

37. Attainder of Treason. 

' ' That no law, to attaint particular persons of treason or 
felony, ought to be made in any case, or at any time hereafter." 
(Maryland Declaration of Rights of 1776.) 

' ' And that no acts of attainder shall be passed by the legisla- 
ture of this State for crimes, other than those committed before 
the termination of the present war ; and that such acts shall not 
work a corruption of blood." (New York Constitution of 1776.) 

" No bill of attainder shall be passed [by Congress]. 

' ' No State shall pass any bill of attainder. ' ' (The Constitu- 
tion.) 

38. Ex Post Facto Laws. 

"That retrospective laws, punishing facts committed before 
the existence of such laws, and by them only declared criminal, 
are oppressive, unjust, and incompatible with liberty ; wherefore 
no ex post facto law ought to be made." (Maryland Declaration 
of Rights of 1776.) 

"That retrospective laws, punishing facts committed before 
the existence of such laws, and by them only declared criminal, 
are oppressive, unjust, and incompatible with liberty ; wherefore 
no ex post facto law ought to be made. ' * (North Carolina Declara- 
tion of Rights of 1776.) 

"Laws made to punish for actions done before the existence 
of such laws, and which have not been declared crimes by pre- 
ceding laws, are unjust, oppressive, and inconsistent with the 
fundamental principles of a free government." (Massachusetts 
Constitution of 1780.) 

210 



Evolution from the Charters 

" Retrospective laws are highly injurious, oppressive, and un- 
just. No such laws, therefore, should be made, either for the 
decision of civil causes or the punishment of offences." (New 
Hampshire Constitution of 1784.) 

" No ex post facto law shall be passed [by Congress]. 

"No state shall pass any ex post facto law." (The Constitu- 
tion.) 

39. Titles of Nobility, Offices of Profit, and 

Presents. 

"That no title of nobility or hereditary honors ought to be 
granted in this State, nor ought any person, in public trust, to 
receive any present from any foreign prince or state, or from the 
United States, or any of them, without the approbation of this 
State." (Maryland Declaration of Rights of 1776.) 

' ' That no hereditary emoluments, privileges, or honors ought 
to be granted or conferred in this State." (North Carolina 
Declaration of Rights of 1776.) 

' ' Nor shall any person holding any office of profit or trust 
under the United States accept of any present, emolument, office, 
or title of any kind whatever from any king, prince, or foreign 
state ; nor shall the United States in Congress assembled grant 
any title of nobility." (Articles of Confederation of 1778.) 

' ' Nor shall any person, holding any office under the United 
States, accept of any present, emolument, office, or title from any 
king or foreign state, without being thereby absolutely rendered 
forever incapable of any public trust under the United States." 
(Drayton's Articles of Confederation of 1778.) 

"The United States shall not grant any title of nobility." 
(Pinckney's Plan, 1787.) 

• ' No title of nobility shall be granted by the United States, 
and no person holding any office of profit or trust under them 
shall, without the consent of the congress, accept of any present, 
emolument, office, or title of any kind whatever from any king, 
prince, or foreign state. 

" No state shall grant any title of nobiUty." (The Constitu- 
tion.) 

211 



Evolution of the Constitution 

40. Martial Law and Habeas Corpus, 

The exercise of martial law and the suspension of the 
privilege of the writ of habeas corpus are somewhat alike, 
because both interrupt the process of civil government 
and destroy for a time the liberty of the citizen. 

Martial law is the right which a military commander 
assumes to suspend civil rights and the remedies founded 
on them when he thinks himself justified by the neces- 
sities of the situation. If he makes a mistake in judg- 
ment, and it is afterwards decided that the necessities 
of the time did not justify him, his acts are all unwar- 
ranted and void. This has been the law from time 
immemorial. But the framers of the colonial charters 
seem to have thought that the power to exercise martial 
law should be expressly given in their documents, prob- 
ably for the reason that its use might often be very 
necessary in a wild country, and no question should be 
allowed to arise as to the right. 

They usually confined its use to cases of actual war, 
invasion, or rebellion. The constitutions of 1776, how- 
ever, omitted any mention of it, except the Massachusetts 
constitution of 1780 and the New Hampshire constitu- 
tion of 1 784. In fact, it is not usually found in modern 
constitutions at all, because there is no need of it. It 
is in any event a mere question of necessity in the des- 
perate straits of an invasion or a rebellion, and the time 
and the occasion are the only tests by which the right to 
use it can be decided. The conditions which may have 
justified such a right as a part of the colonial charters 
have long since disappeared. 

But the Massachusetts constitution of 1780 and the 

212 



Evolution from the Charters 

New Hampshire constitution of 1784, which mentioned 
it for the Icist time, introduced a new power, — namely, 
the right to suspend the privilege of the writ of habeas 
corpus ; and it was confined, as martial law had been 
confined, to the most urgent occasions. 

We find a similar clause in the National Constitution, 
with the suspension limited to " cases of rebellion or 
invasion," when ''the public safety may require it." 
But, unfortunately, the framers of the Constitution failed 
to say which department of the government should have 
the power to suspend ; and it became a serious question 
in the civil war whether the President or Congress had 
the power. In the Massachusetts constitution of 1780 
it had been given expressly to the legislature. 

The governor allowed to exercise martial law in rebellion or 
mutiny. (Virginia Charter of 1609,) 

Lord Baltimore allowed to exercise martial law in rebellion or 
mutiny. (Maryland Charter of 1632.) 

The above provision from the Maryland charter of 1632 is 
substantially repeated in the Grant of Maine of 1639. 

The governor allowed to exercise martial law only as occasion 
shall require. (Connecticut Charter of 1662.) 

The governor allowed to exercise martial law only as occasion 
shall require. (Rhode Island Charter of 1663,) 

The Carolina charters of 1663 and 1665 copy the provision 
given above from the Maryland charter of 1632. 

The governor allowed to exercise martial law in time of actual 
war or rebellion as occasion shall necessarily require, but cannot 
grant commissions for exercising it except by consent of his coun- 
cil. (Massachusetts Charter of 1691.) 

The corporation allowed to exercise martial law in time of 
actual war or rebellion where by law it may be used. (Georgia 
Charter of 1732.) 

The governor to exercise martial law over the army and navy 

213 



Evolution of the Constitution 

in war and invasion, and in rebellion declared by the legislature 
to exist, as occasion shall necessarily require ; and the privilege 
of habeas corpus not to be suspended by the legislature except 
upon the most urgent occasions, and then for a time not exceed- 
ing twelve months. (Massachusetts Constitution of 1780.) 

The above provisions from the Massachusetts constitution of 
1 780, relating to both martial law and habeas corpus, are repeated 
in the New Hampshire constitution of 1784, except that the time 
during which the writ of habeas corpus may be suspended is 
limited to three months. . 

The privilege of habeas corpus to be suspended only in rebel- 
lion or invasion. (Pinckney's Plan, 1787.) 

The privilege of habeas corpus to be suspended only in rebel- 
lion or invasion, when the public safety may require it. (The 
Constitution.) 

41. Eminent Domain. 

' ' That private property ought to be subservient to public uses, 
when necessity requires it ; nevertheless, whenever any particular 
man's property is taken for the use of the public, the owner ought 
to receive an equivalent in money." (Vermont Constitution of 

1777.) 

*' And whenever the public exigencies require that the prop- 
erty of an individual should be appropriated to public uses, he 
shall receive a reasonable compensation therefor. ' ' (Massachu- 
setts Constitution of 1780.) 

' * That private property ought to be subservient to public uses, 
when necessity requires it ; nevertheless, whenever any particular 
man's property is taken for the use of the public, the owner ought 
to receive an equivalent in money." (Vermont Constitution of 
1786.) 

"Nor shall private property be taken for public use without 
just compensation." (Fifth Amendment to the Constitution.) 



214- 



CHAPTER VI. 

THE EVOLUTION OF FEDERALISM. 
(1643 to 1787.) 

When we examine our present National Constitution, 
it is easy to see that it consists of two classes of pro- 
visions. One class is concerned with the forms and 
departments of administration, — the house of representa- 
tives, the senate, the president, the judiciary, and their 
relations to one another ; and these provisions, as we 
have shown, were gradually evolved by two hundred 
years' experience with the local governments under the 
colonial charters and constitutions and under the consti- 
tutions of 1776. 

The other class of provisions is concerned with the 
relations of the states to the general government, and 
limits the powers of the general government and restricts 
also the powers of the states. /This federalism, as it is 
called, we have not yet touched upon, because there 
was nothing relating to it in the colonial charters or in 
the constitutions of 1776. It belongs to another line 
of development. -" 

There were thus two lines of development. One 
started in the forms of the old charters for governing 
each individual colony, and grew through subsequent 
charters, constitutions, and the constitutions of 1776, 
producing, as we have shown, the administrative pro- 

215 



Evolution of the Constitution 

visions of the National Constitution. The other Hne 
started in plans of union for defence against the Indians, 
and passed through a totally different set of documents, 
until it produced the Articles of Confederation and the 
federalism of the Constitution. 

The development of federalism went through similar 
stages, and took almost as long in its processes as the 
development of the administrative parts of the Constitu- 
tion. We usually think of it as starting about the time 
of the Revolution, or at least receiving its greatest impetus 
at that time. But it had been an important and a much- 
debated question for more than a hundred years before 
1776, and more than twenty plans of union had been 
suggested and discussed. In fact, during the seven- 
teenth and eighteenth centuries the union or confedera- 
tion of the colonies was one of the great questions of 
the English-speaking world.* 

If it had not been a great problem, and if it had not 
been so long and so much discussed, there would be no 
American federalism to-day. Such a remarkable and suc- 
cessful contrivance could not have been made in a year 
or in a decade ; could not have been the result of one 
war or revolution. Neither imitation of other countries 
nor sudden inspiration or ingenuity accounts for great 
political institutions ; but natural conditions, many 
minds, many ages, and great searchings of heart. 

The material which shows the attention given to this 
question in colonial times and the experiments that were 



* It is interesting to note that England is again discussing the 
confederation of her colonies. 

216 



Evolution of Federalism 

made in it has been collected in an admirable manner 
by Mr. Frederick D. Stone, librarian of the Historical 
Society of Pennsylvania, and published as an appendix /^ 
to the second volume of Carson's " One Hundredth 
Anniversary of the Constitution." But it is hardly as 
yet much known to constitutional lawyers and scholars, 
and certainly not so well known as it deserves. 

Before we go farther in the analysis of this material 
it may be well to say that/ffie progression of the subject 
is union, confederation, federalisrn^ By union is meant 
a mere alliance of sovereignties to accomplish a certain 
purpose. This purpose accomplished, the union may 
cease, or may be continued, at the option of the con- 
tracting parties, to accomplish some other purpose. 
Confederation implies a stronger bond. The union is 
intended to be perpetual, — at any rate, it is avowedly 
to be perpetual, — and the sovereignties surrender some 
of their local rights to the union and create a general 
council or some form of general power to conduct what 
is for the general interest. But it is a consolidation of 
sovereignties, and not a government of the people. The 
general government deals with the individual states, and 
not directly with the people. 

Federalism goes farther. More power is surrendered 
to the general government, which, instead of being the 
creature of the sovereignties, is the creature of the mass 
of the people that compose the sovereignties. The 
general government, instead of acting through the indi- 
vidual states, asking them for everything and relying on 
them to enforce its commands, now acts directly on the 
people and has the power to enforce its commands upon 

217 



Evolution of the Constitution 

the people. The states retain their local rights and are 
supposed to be indestructible entities, and the union 
and the general government are supposed to be inde- 
structible. By this is meant that the fusion has gone 
so far that, although the original elements can still be 
appreciated as distinct bodies, they could not be sepa- 
rated or resolved into their original independence with- 
out great violence, — that is, war and revolution. 

What may be the development beyond federalism 
remains to be seen. But it presumably will be a more 
and more complete fusion, approaching homogeneity, 
and a stronger nationality, until it will be utterly im- 
possible, by violence or any other known means, to 
restore the original elements. 

The numerous plans of union in colonial times show 
the early phases of this development, and the first one 
of which we have any record is the confederation of the 
New England colonies in 1643 to protect themselves 
from the Indians or any hostile invasion. 

The articles of this union are very particular to state 
that each colony retains its own local rights and juris- 
diction unimpaired. The costs of any war are to be 
divided among the colonies in proportion to the popu- 
lation of each ; but they are to be " left to their owne 
just course and custome of rating themselves.*' Thus 
the independence of each party to the union is amply 
secured, and the only step towards federalism is that 
the provinces surrender a small amount of their indi- 
vidual rights by agreeing not to make war without per- 
mission of the union unless suddenly invaded, and by 
agreeing that no two of them shall join in one juris- 

218 



Evolution of Federalism 

diction without the consent of the others. But the local 
rights of each province are so strongly guaranteed that 
the union is still very far from federaHsm. This was 
natural ; for the first and most essential element in feder- 
alism is a rigorous and distinct appreciation of local sov- 
ereignty. This is the foundation ; for, as federalism is 
an indestructible union of indestructible states, the states 
must begin by feeling themselves indestructible. 

Besides the emphasis it gives to local rights, the New 
England union of 1643 shows the beginnings of certain 
general provisions which can be traced afterwards until 
they appear in the National Constitution of 1787. This 
union of 1643 was quite early in the colonial period. 
The first of the colonies, Virginia, had been founded 
only a little more than thirty years, and Massachusetts 
was not yet twenty years old. But the situation of the 
colonies had already made the importance of their union 
very obvious. People naturally talked about it, and for 
the next hundred years and more we find most of the 
prominent people preparing plans. 

Besides its very evident advantage for defence and 
war, a union might obviate certain inconveniences which 
were felt then as strongly as they would be now if we 
had no union. The colonists were of the same nation, 
spoke the same language, were living in the same zone 
of climate, soil, and products ; and yet they were sepa- 
rated into distinct communities, governed by different 
laws, often with very strong religious differences, and 
with no boundaries between their jurisdictions but arti- 
ficial lines, or natural ones which were very easily passed. 

One of the first questions that arose among them was, 

219 



Evolution of the Constitution 

How is a citizen of one colony to be treated when he 
goes to visit or trade in a neighboring colony, where the 
people do not like his opinions or where the laws of 
trade differ from those of his home? Shall there be 
certificates or passports ? Suppose one colony treats 
the Indians in one manner, and another colony in an- 
other manner, and a third colony in a third manner, 
will not there be endless misunderstandings and wars, 
and will it not be impossible to stop the wars ? Sup- 
pose a servant escapes from his master and takes refuge 
in another colony, can the master get him back ? Will 
not persons accused of crime in one colony simply re- 
move into another? 

All these questions were very real and practical in 
colonial times, and in some respects more so than we 
might at first suppose. It was no light matter for a 
Massachusetts man in the year 1650 to go down into 
Rhode Island ; and it was a very serious matter for a 
Rhode Island person to go up into Massachusetts. A 
Quaker woman who went from Rhode Island to Massa- 
chusetts was hanged for her temerity, and several Bap- 
tists were severely handled. In Pennsylvania, in Gov- 
ernor Keith's time, the people were aroused to great 
indignation because a Delaware sheriff had pursued a 
hue-and-cry after a thief across the boundary ; and the 
matter had to be accommodated by allowing each pro- 
vince to pursue hue-and-cry for a certain distance across 
the line. 

The differences between the people of the colonies 
were very marked ; and even as late as the time of the 
Revolution the delegates to the Continental Congress 

220 



Evolution of Federalism 

are said to have looked upon one another at first as 
strangers and aliens. In the year 1643 it would have 
been almost impossible to join all the colonies in a 
union. In New England, Rhode Island was so much 
disliked by the other provinces that it was not included 
in the union we are now considering. 

Massachusetts, New Plymouth, Connecticut, and New 
Haven were, however, sufficiently agreed among them- 
selves, and in the union they formed each was to ap- 
point two commissioners, and the eight thus chosen "^ 
were to be the governing body of the union. If Dutch 
ideas were as prevalent in New England cis Mr. Camp- 
bell supposes, these commissioners would have voted 
by colonies, after the manner of the States-General of 
the Netherlands. But there was no such arrangement. 
Six of the commissioners could decide all questions ; ^ 
and if six could not agree, the question was to be passed 
upon by each of the assemblies of the four colonies, 
and, if they all agreed, the decision was to be carried out. 
It was a simple, ordinary arrangement for a union, and 
was very much like other leagues of nations the world 
over. It described itself as a "league of friendship and 
amytie, offence and defence." 

The problems of return of servants and fugitives from 
justice and intercourse between citizens of the different 
colonies were attempted to be solved in very much the 
same way as they are now solved in the National Con- 
stitution. Runaway servants and fugitives from justice 
were to be returned, and arrangements were to be made 
to give the citizens of each colony equal rights in the 
other colonies. 

221 



Evolution of the Constitution 

But the colonists were not the only persons who saw 
and discussed the convenience of union. The Crown 
and the Privy Council saw it, although from a somewhat 
different point of view. Charles II., immediately after 
his restoration in 1660, created a council for foreign 
plantations, which was to correspond with the governors 
and devise means for bringing the colonies into a more 
uniform government. 

Between twenty-five and thirty years later James II. 
attempted to go much further, — to vacate all the colonial 
charters and unite all the colonies from the Delaware to 
the St. Lawrence under one government composed of a 
legislative council appointed by the king and a captain- 
general as governor. He had gone so far as to appoint 
Sir Edmund Andros to be the captain-general, when he 
was dethroned by William III., who took no interest 
in his plan of union. 

The council for foreign plantations which Charles II. 
had established was abolished in 1674, and ever after that 
the affairs of the colonies were in the hands of the Privy 
Council, who managed them through a committee known 
as The Lords of Trade and Plantations. This committee 
and the Privy Council governed the colonies. They 
informed themselves on all colonial affairs and recom- 
mended measures to the king. They did not properly 
constitute a union of the colonies, but they often pro- 
posed plans of union, usually from the point of view of 
military convenience to resist the French and obtain sup- 
plies and tribute from the colonies more easily. Their 
plans were seldom in the direction of liberty, and are not 
so interesting as those of the colonists themselves. 

222 



Evolution of Federalism 

After the New England union of 1643 similar attempts 
appear in the next sixty years among other colonies to 
join in unions of some form or other, usually for treaties 
or war with the Indians. Some of them were more or 
less successful in accomplishing their object, but they 
furnish us with no elaborate provisions like those of the 
New England union. They were, in fact, temporary 
unions, and even the New England union, though in- 
tended to be perpetual, became obsolete within twenty- 
five years, and had accomplished little or nothing. 

An attempt at union after the massacre at Schenectady 
in 1690 is noteworthy as including the New England 
colonies. New York, Virginia, and Maryland, — the near- 
est approach to a union of all the colonies that had as 
yet been tried, — but only delegates from Massachusetts, 
Plymouth, Connecticut, and New York attended. Al- 
though nothing remarkable was accomplished by any 
of these ventures, there is evidence of considerable dis- 
cussion of the subject and desire and demand for union 
from all quarters, — from the colonists as well as from 
the Privy Council in England. 

In 1696-97 we have a definite plan drawn up in 
writing by William Penn and submitted to the Lords of 
Trade and Plantations. It was brought about by one of 
those natural conditions and inconveniences which, as 
we have shown, were steadily driving the people towards 
union and federalism. Penn at that time was not only 
proprietor of Pennsylvania, but also one of the proprie- 
tors of East Jersey. Finding that New York was col- 
lecting customs on goods sent to the Jerseys, and that 
there was much difficulty in determining the quota of 

223 



Evolution of the Constitution 

troops from East Jersey for the defence of New York, he 
proposed that such matters should be settled by a union 
or general government of some sort. In other words, 
he was striving for the settlement of two questions which 
are now settled by the National Constitution. 

This plan of Penn's is the first which included all the 
colonies. The others had been sectional, although show- 
ing a tendency to increase the number of the sections. 

Penn started with the same arrangement that had been 
adopted in the New England union of 1643, and pro- 
vided for two deputies to be appointed by each colony. 
The twenty deputies thus appointed were to be called 
the congress, which is apparently the first use of that 
word for an American assembly ; and it is rather remark- 
able that this congress of Penn's should be not only the 
first suggestion of a representative legislature for all the 
colonies, but should have the same name that was after- 
wards given in the Revolution and that is still retained. 

The New England union had been merely a legis- 
lative body without any executive head. But Penn's 
congress was to be presided over by a commissioner 
appointed by the king, and, as New York would be the 
most central place for the congress to meet in, the New 
York governor should "be the king's high commis- 
sioner during the session, after the manner of Scotland." 

This passage is worth observing for the phrase " after 
the manner of Scotland," because so much has been 
recently written about the Dutch origin of our institu- 
tions, and it has been particularly urged by Mr. Camp- 
bell that Penn's having had a Dutch mother and having 
travelled extensively in Holland gave a tinge of Dutch 

224 



Evolution of Federalism 

ideas to the laws and constitutions which he established 
in America. But here we find him confessing that he 
is guided in one particular by a Scotch model, and it is 
not an unfair inference that if he admits an imitation in 
this instance he would probably admit it in others. In 
none of his laws or constitutions, however, can a single 
word be found implying a Dutch origin. 

After providing for an executive, Penn's plan goes on 
to deal with those inconveniences of intercourse between 
the colonies which we found the New England union 
attempting to mitigate. The New England union was 
to preserve peace among the different colonies, carry 
on war against the Indians, arrange the quotas of men 
each colony was to furnish for war, arrange for the 
rights of citizens of one colony visiting another colony, 
adopt a general policy of dealing with the Indians, and 
provide for the return of servants and persons accused 
of crime escaping into another colony. Penn added to 
these subjects of general government the return of ab- 
sconding debtors and the regulation of commerce. 

The regulation of commerce is a most interesting ad- 
dition and development. As commerce increased in the 
course of years its regulation became of more and more 
importance, and in the end the necessity for this regu- 
lation was one of the most important causes of federal^ 
ism. In fact, the convention which framed the National 
Constitution in 1787 was originally called merely for the 
purpose of regulating the commerce between the States 
that bordered on Chesapeake Bay ; and no more im- 
portant clause was placed in the national document than 
that which gives Congress power to *' regulate commerce 
15 225 



^ 



Evolution of the Constitution 

with foreign nations and among the several states, and 
with the Indian tribes." 

The last clause of Penn's plan provided that in time 
of war the king's high commissioner should be " General 
or Chief Commander" of the forces raised by the colo- 
nies. This sort of military power was, as we have seen 
in a previous chapter, often given to the governor in 
the constitutions of 1776, and he was called commander- 
in-chief or captain-general until, in the National Consti- 
tution, the term commander-in-chief was settled upon 
for the President. 

Penn's plan of a congress of deputies, each colony 
sending an equal number, with a presiding officer, or 
executive head, appointed by the king, remained for a 
long time the model for all plans of union of the colo- 
nies. Names and details were varied, but the general 
outline remained. 

It may also be observed at this point that the legis- 
lative body created by the New England plan of union 
had the sole power of declaring war and peace, and the 
other numerous temporary unions which were made 
from time to time were usually for the purpose of regu- 
lating war or treaties with the Indians. This may have 
gradually accustomed the colonists to the idea that the 
war and peace power of a government belonged to the 
representative and legislative department, and not to 
the executive, so that, when the National Constitution 
was framed, the war power, instead of being given to the 
President in imitation of the war power of the British 
king, was given to Congress. 

For some years after Penn's plan appeared there was 

226 



Evolution of Federalism 

a discussion of the subject of union, which shows that 
the idea was not only developing, but was arousing op- 
position in some quarters, or, in other words, that the 
people were becoming more and more trained to its 
various aspects. About the time of Penn's plan the 
Lords of Trade discussed another one, which they had 
received from the governor and assembly of Massa- 
chusetts, accompanied by several memorials from per- 
sons in neighboring colonies. It was suggested, appar- 
ently, that New York, New Jersey, and all the New 
England colonies be united together under one gover- 
nor, who should be the person that was appointed gov- 
ernor of Massachusetts, and that he should also be the 
governor of New York and New Hampshire and general 
of the forces raised by the colonies that were to unite. 

Connecticut objected to this arrangement, because 
such a military governor would have power to march 
her people beyond the boundaries of their province 
without that province's consent. This objection was a 
very common one in colonial times, and the feeling was 
strong that the people of a province should never, ex- 
cept by their own consent, be marched beyond its 
boundaries. New Hampshire also objected, because it 
would be an increased charge upon her without any 
compensating advantage ; and New York objected, be- 
cause most of the New England colonies had enough 
to do to defend their own frontiers and could not assist 
Massachusetts or New York. There seems also to have 
been an apprehension that the plan might give Boston 
too much advantage in trade. 

The question was debated back and forth with con- 

227 



Evolution of the Constitution 

siderable detail, and the Lords of Trade, being of the 
opinion that any union, except under such a military 
head, was impracticable, recommended that a captain- 
general be appointed as requested, and that his chief 
residence during the war be in New York, with liberty 
to remove to Boston from time to time as occasion 
should require. Richard, Earl of Bellomont, was ap- 
pointed to this office, and for a time this union was in 
actual operation. 

Two years afterwards Charles D'Avenant suggested 
a scheme of a Council of Trade, to which council each 
colony should regularly report its condition, and at the 
same time he approved of Penn's plan. Both his plan 
and Penn's were criticised in a pamphlet written by a 
Virginian, who objected to the provisions for equal rep- 
resentation from each colony. As the colonies differed 
vastly in numbers and extent, this was, he said, unfair, 
and he proposed that Virginia should have four repre- 
sentatives, Maryland three. New York two, Boston three, 
and so on. No one, he said, would deny Virginia's right 
to more representatives than the others, because she was 
the eldest and the most profitable of all the English 
plantations in America. 

He also objected to the deputies meeting always at 
New York, and offered an arrangement by which they 
should meet in turn in different parts of the country, so 
that they might become better acquainted with the con- 
ditions and requirements of each part New York, he 
said, should not have an opportunity of drawing so 
much money to it every year from all the other colo- 
nies. He commented somewhat on what D'Avenant 

228 



Evolution of Federalism 

had said of Penn's plan being an imitation of the Greek 
Amphictyonic Council. He urged that the colonies 
which still remained proprietary or had charters be 
taken under the direct rule of the king by act of Par- 
liament. This uniformity in the government of each 
would assist in a uniform plan for the government of 
all, which, he said, was becoming more and more neces- 
sary to resist the designs of the French and Spanish 
on the North American continent. 

In 1 70 1 Robert Livingston, of New York, suggested 
a plan which is of interest, because it is based on the 
sectional principle and gives up any hope of uniting all 
the colonies. He proposed three distinct governments, 
— one composed of Virginia, Maryland, and North and 
South Carolina ; a second, of part of Connecticut, New 
York, the Jerseys, Pennsylvania, and Delaware ; and a 
third, of Massachusetts, New Hampshire, Rhode Island, 
and the rest of Connecticut. He divided up the colo- 
nies, it will be observed, very nearly on the division, 
which has always existed, of New England, Middle, and 
Southern ; and his plan shows clearly that sectionalism 
was always an important element in the growth or in 
checking the growth of federalism. 

In 1 72 1 the Earl of Stair prepared a very compre- 
hensive scheme of twenty-six articles, which were to in- 
clude the West Indies as well as all the English colonies 
on the continent. It followed the regulation form, 
which had been started by Penn, of a legislative body 
composed of two delegates from each province, presided 
over by a captain-general, who was to reside in the 
middlemost province. The right to local self-govern-" 

229 



Evolution of the Constitution 

ment in each colony was guaranteed, as it usually was 
in these plans, showing how persistent was this first and 
essential element of federalism. The method of invest- 
ing the captain-general with his authority was left to be 
settled afterwards, and the plan suggested that he might 
be either nominated, elected, chosen, or appointed, 
which gave the colonists a possible chance for a voice 
in his selection, and was more liberal than most of the 
plans. 

The plan was indeed not only liberal, but elaborate, 
and showed a decided tendency to develop the details 
of a general government. Salaries were provided for 
every one, a treasury department was outlined, and a 
general post-office system. There were also to be a 
secretary of state and a small navy of eight or ten ves- 
sels. It was a decided development towards a national 
government. 

The Lords of Trade seem to have recommended the 
general features of the plan to the king, and they added 
that the utility of a union was so evident that it was un- 
necessary to argue the question. This seems to have 
been the general feeling of the time. The absurdities 
and inconveniences of intercourse among the colonies 
were obvious to every one. 

In 1722, a plan by Daniel Coxe, of New Jersey, sug- 
gests, for the first time, that the captain-general, or head 
of the union, should be given the veto power, and argues 
for the importance of a union from the disasters which 
befell the ancient Britons for the want of one. 

At the same time there was one important person, 
and probably others, long-headed enough to see that 

230 



Evolution of Federalism 

from the point of view of the British Crown there might 
be a disadvantage in union. Sir William Keith, who 
had been a very successful governor of Pennsylvania, 
thought that the want of harmony among the colonies 
and their jealousies in trade should be encouraged ^ 
rather than mitigated. *'The wisdom," he said, **of 
the Crown of Great Britain therefore by keeping its colo- 
nies in such situation is very much to be applauded ; 
for while they continue so it is morally impossible that 
any dangerous union can be formed among them." It 
was not good policy, he thought, *' to accustom all the 
able men in the colonies to be well exercised in arms." 

Our next plan is Franklin's of 1754, and a very im- 
portant one. The Lords of Trade were anxious that all 
the colonies should, by their representatives, meet all 
the Indian tribes at Albany and make a general treaty 
with them which would break up the confusion of sepa- 
rate treaties and policies and be a precedent for general 
action in the future. Massachusetts took up the sug- 
gestion with much earnestness, and urged that at the 
same meeting there should be an attempt to confederate 
all the provinces. Several plans of union were offered, 
and Franklin's was adopted. It had been more ma- 
turely considered than the others ; for before the meet- 
ing he had published his thoughts on the question in his 
newspaper in Philadelphia, and from these he elaborated 
the plan he presented to the meeting. 

It contained most of the developments we have al- 
ready noticed ; self-government was guaranteed to each ^ 
colony, salaries were provided, and a treasury depart- 1 
ment ; and then we find some interesting advances. 

231 



Evolution of the Constitution 

The president-general is distinctly assigned the duty of 
carrying into execution the acts of the council, — a de- 
tail of executive power which had not been formally 
expressed in the other plans, and which reminds us of 
that expression which, starting in one of the constitu- 
tions of Pennsylvania, passed through nearly all the 
documents until we find it in the National Constitution 
in the slightly altered form, " he shall take care that the 
laws be faithfully executed." 

The president-general is to appoint military officers 
with the consent of the grand council, and civil officers 
are to be appointed by the grand council with the con- 
sent of the president-general, which was a more detailed 
description of the appointing power than had appeared 
before. The term president-general is worth observing. 
It is evidently an attempt to give a name which should 
be short and also express the general opinion that the 
head of the union must be at the same time both a civil 
and a military officer. The same idea was afterwards 
carried out in the National Constitution by calling the 
head of the government President and declaring that he 
should be commander-in-chief of the army and navy. 

But the most striking advance in Franklin's plan is 
that the grand council, or representative body of all the 
colonies, is given the power " to lay and levy general 
duties, imposts, or taxes" on each colony according to 
its circumstances and ability. Previous plans had been 
very careful to leave to each colony the manner in which 
money was to be raised from it, and this was part of the 
guarantee of its local rights. The union might fix a 
colony's quota, but the colony was to lay the taxes that 

232 



Evolution of Federalism 

raised it, and this showed that the plans of union were 
as yet nothing but leagues or alliances of sovereignties. 
But here in Franklin's plan we find the provinces for the 
first time surrendering an important part of their sover- 
eignty and allowing the general government to act di- 
rectly on their people instead of through sovereignties, 
and this was evidently a strong move in the direction of 
federalism. 

There was also another new provision in the plan, 
providing that no money should issue except *' by joint 
orders of the president-general and grand council, ex- 
cept where sums had been appropriated to particular 
purposes and the president-general is previously em- 
powered by an act to draw for such sums." This was a 
natural and necessary arrangement appearing for the 
first time, and afterwards in the National Constitution 
the same point was covered by the simple expression, 
" No money shall be drawn from the treasury but in 
consequence of appropriations made by law." 

In the next sentence of his plan we find Franklin 
providing that " the general accounts shall be yearly 
settled and reported to the several assemblies," and in 
the National Constitution we find, " a regular statement 
and account of the receipts and the expenditures of all 
public money shall be published from time to time." 

The general outline of Franklin's plan was, of course, 
the regulation one of a body of deputies sent by the 
colonies and called the grand council, and a president- 
general appointed by the Crown, who was not merely 
to preside over the grand council, but is described as 
administering the general government. The grand 

233 



Evolution of the Constitution 

council were to choose their own speaker, and could 
not be dissolved nor continued sitting longer than six 
weeks at one time without their own consent or the 
special command of the Crown. The president-general 
is impliedly given the veto power in a passage which 
requires his assent to all acts of the grand council, and 
there is another veto power in the king, for the laws must 
be transmitted to him, and, if not disapproved within 
three years after presentation, are to remain in force. 

It was, in fact, a complete form of government It is 
important also to notice that the representation of the 
colonies in the grand council was not equal. Massa- 
chusetts was given seven representatives, Virginia seven, 
Pennsylvania six, and the others lesser numbers. After 
three years the representation from each colony was to 
be in proportion to the money raised from it each year, 
provided that the number chosen by any one province 
should not be more than seven nor less than two. This 
question of the representation of each colony in the union 
gave much trouble, and was settled in different ways. In 
the previous plans we find an equal representation, with 
occasional criticisms that it should be unequal, but here 
we find a plan adopted by representatives of all the 
colonies making the representation decidedly unequal. 
This shows conclusively that the colonies were working 
out the problem of representation in their own way, and 
that when in the Articles of Confederation of the Revo- 
lution the representation was made equal, by giving 
each State one vote, it was not, as Mr. Campbell sup- 
poses, an imitation of the States-General of the Nether- 
lands. 

234 



Evolution of Federalism 

Among the plans which seem to have been submitted 
at the same time as Franklin's was one which should be 
mentioned because it is based on sectionalism. It is 
supposed to have been prepared by Richard Peters, who 
was secretary of the province of Pennsylvania and a 
delegate to the Albany convention. It divides the 
colonies into four different governments, — one composed 
of the extreme southern colonies, Georgia and the two 
Carolinas ; another of Virginia, Maryland, and Pennsyl- 
vania ; a third of the Jerseys and New York, and the 
fourth of the New England colonies. It was almost 
exclusively a military suggestion, and contains nothing 
worthy of comment. 

Franklin's plan adopted at Albany was referred by 
the Massachusetts assembly to a committee that prepared 
a substitute based on sectionalism. But both this and 
Franklin's plan were rejected by the Massachusetts as- 
sembly and a new committee appointed, which prepared 
a plan usually known as Hutchinson's. It was for the 
most part a mere paraphrase of Franklin's, except that 
it provides that no member of the council shall be chosen 
or appointed to any civil or military office, which shows 
that the desire to keep the departments of government 
more distinct was growing, and it also gave the president 
and council power to appoint officers for collecting from 
the people the duties levied by the council. This last 
provision was another advance towards federalism. 

Considerable jealousy was felt against the power given 
to the general government in Franklin's union, and 
Hutchinson's plan provided that the power of the union 
should continue for only six years, unless at the end of 

235 



Evolution of the Constitution 

that time there should be war between Great Britain 
and France, in which case the power should continue 
until the end of the war. 

The other colonies also rejected Franklin's plan. They 
seemed to be jealous of it, and thought it created too 
strong a government. It was also rejected in England 
by the Lords of Trade, because it was too democratic. 
The Lords of Trade then offered a plan of their own, 
which w^as merely military and never carried into effect. 

Some years afterwards, Dr. Samuel Johnson, president 
of King's College, in New York, proposed a plan which 
is noteworthy as coming from a learned source and also 
from a person who was evidently a high Tory. To his 
mind the colonies seemed to be becoming too republi- 
can. They should be brought more into conformity 
with the government of the mother-country, and to this 
end colonies like Rhode Island and Connecticut, which 
had rather liberal governments, should have their char- 
ters abolished. The proprietary governments should 
also be abolished and all brought under the direct rule 
of the king. This being done, a union might be formed 
on the general plan of a captain-general or head of some 
sort, with a council composed of two representatives 
from each province. This, he said, would be like the 
Amphictyonic Council of the ancient states of Greece. 
It would consider the common affairs of war and trade, 
and might also consider whether the laws passed in the 
different colonies should be confirmed or annulled. 
This last was certainly a peculiar suggestiofi. 

But almost every plan of union that appeared added 
some development, and so we find even in this one the 

236 



Evolution of Federalism 

first suggestion that the union should regulate the value 
of money so that it should be uniform in all the prov- 
inces, — a provision which afterwards appeared in nearly 
all the plans until it took its place in the Constitution. 

During the agitations over the stamp act and other 
parliamentary measures which preceded the Revolution 
there were congresses and meetings of delegates from 
all the colonies, but no formal plan of union was pre- 
pared. The congresses and meetings, however, were in 
themselves acts of union, and could hardly have been 
assembled so easily without the previous experience and 
training of over a hundred years in unions for Indian 
wars and treaties and to resist the French. The French 
and Indian wars, which were just completed before the 
stamp-act agitation began, had shown more plainly than 
ever the need of union and at the same time strengthened 
the feeling for it by giving the people for the first time 
a common bond of sympathy against a common enemy. 
There is nothing so effective as a foreign enemy and 
invader for driving a people into union, and there has 
been an instance of it in our own time in the unifica- 
tion of Germany after the Franco-Prussian War. 

In the case of the colonies the unifying tendency of 
the French enemy was followed immediately by the 
appearance of another enemy, — the British Parliament 
and king, — and under the pressure of this new invader 
delegates from all the colonies met together naturally 
and easily. They drew up no plan or rules of union, 
for the cause of their union had become too plain for 
rules. But their debates assisted the development 
towards federalism. They discussed for the first time 

237 



Evolution of the Constitution 

the rights and privileges of the colonies as a whole, 
reviewed their history, and generalized their liberties. 

The unity of feeling among them was strongly shown 
in the non-importation agreement, under which they vol- 
untarily deprived themselves of foreign luxuries and set 
to work to increase their own arts and manufactures as 
well as their flocks and herds. They agreed upon the 
most rigid economy among themselves. On the death of 
a relation, "none of us," says the agreement, ''will go 
into any further mourning dress than a black crape or 
ribbon on the arm or hat for gentlemen and a black 
ribbon and necklace for ladies, and we will discontinue 
the giving of gloves and scarfs at funerals." When sov- 
ereign states meet together and are willing to give up 
conveniences, privileges, or rights for the benefit of all, 
they have taken the first step beyond a mere league 
and in the direction of federalism. 

The Continental Congress assembled in 1774, without 
any definite form of government, and went on from day 
to day and year to year conducting a war, organizing 
an army, and raising money by tacit understanding, 
with no written instrument, charter, or constitution to 
guide it. Three plans for a general government were 
suggested and debated by its members from time to 
time ; but four years passed before any one of them 
was adopted, and in that time the Congress was sup- 
ported in its authority and its important measures by 
nothing more than general opinion. 

The three plans of government that were debated by 
the Congress were Galloway's Plan of 1774, Franklin's 
Plan of 1775, and the Articles of Confederation, which 

238 



Evolution of Federalism 

were prepared in 1776, but not finally adopted and ap- 
proved by Congress until 1778. 

Galloway's plan was avowedly intended to prevent 
independence and unite the colonies among themselves 
and with the mother-country in a way that should pre- 
serve their liberties. The greater part of it is a mere 
copy of Franklin's plan of 1754. The local rights of 
each colony are first of all guaranteed, and there were 
to be a president-general appointed by the Crown, and 
a grand council elected by the colonies every three 
years, each colony to have representation in proportion 
to its importance. The president was to have the veto 
power and execute the laws, and the grand council was 
to have all the rights and privileges of the House of 
Commons of Great Britain. The legislative power given 
to the grand council was very broad and vague, and 
might have meant almost anything. The council were to 
" exercise all the legislative rights, powers, and authori- 
ties necessary for regulating and administering all the 
general police and affairs of the colonies, in which 
Great Britain and the colonies, or any of them, the 
colonies in general, or more than one colony, are in 
any manner concerned, as well civil and criminal as 
commercial." 

This was certainly an enormous stride towards federal- 
ism, and would have given the grand council far more 
power than is now possessed by the Congress of the 
United States. 

But besides this the grand council was to be a branch 
of the British legislature, and in all general colonial 
matters the two were to be a check on each other. 

239 



Evolution of the Constitution 

Either could originate colonial legislation, but no act 
was to be valid without the consent of both, except 
money-bills for aid to the Crown in war, which might 
become valid when approved by the grand council and 
the president without the assent of the British Par- 
liament. 

This plan seems to have at one time met with the 
approval of a majority of the Congress. But afterwards, 
when the feeling against England had increased, the 
plan and all debate on it were ordered to be stricken 
from the records. 

Franklin's plan of the following year also contem- 
plated a reconciliation with England, but only as a 
future contingency, and there was no suggestion of di- 
rect connection with the British Parliament. It was a 
plan for an independent government, which should be 
perpetually independent unless reconciliation with the 
mother-country were effected. It was not so strong in its 
federalism as Galloway's plan ; yet it was a considerable 
advance on plans previous to his, and showed how the 
idea was progressing. 

The description of the rights of the States, the sub- 
jects over which they should retain jurisdiction, and the 
matters which should be under the control of the gen- 
eral government is in Franklin's plan very clear and 
somewhat like the modern way of expressing it. The 
plan, however, is intended to be suggestive in its form, 
and consists principally of general heads to be worked 
out afterwards in detail. Of this sort is the third arti- 
cle, which says that each colony shall " retain as much 

as it may think fit of its own present laws, customs, 

240 



Evolution of Federalism 

rights, privileges, and peculiar jurisdiction within its own 
limits and may amend its own constitution as shall seem 
best." The power and duty of Congress are clearly de- 
fined, and are to extend to war and peace, sending and 
receiving ambassadors, entering into alliance, settling 
boundary disputes and all other disputes between the 
colonies ; and Congress is given power over all other 
matters which are necessary to the general welfare and 
cannot be well controlled by the assemblies of the in- 
dividual States, — viz., regulations for general commerce, 
general currency, the post-office, and the army. 

This was a large delegation of power. The assign- 
ing of the right of declaring war and peace to Congress 
shows how persistent was the tendency among our 
people to give this power to the legislative department 
instead of to the executive. The sending and receiving 
of ambassadors and the entering into alliances were, of 
course, new, because the people were now acting inde- 
pendently of the mother-country, and it was necessary 
that their government should have this attribute of 
sovereignty. The settlement of boundary disputes be- 
tween colonies arose out of the circumstances of the 
time. There had been great difficulty over boundary 
questions between New Hampshire and Vermont, New 
York and Vermont, Pennsylvania and Connecticut, Penn- 
sylvania and Maryland, and Pennsylvania and Virginia. 
Several of these disputes, notably those between Penn- 
sylvania and Connecticut and Pennsylvania and Mary- 
land, had already resulted in bloodshed and petty civil 
war. It had been found impossible to settle them except 
after long litigation before the Privy Council in England, 
i6 241 



Evolution of the Constitution 

which, in the case of the dispute between Pennsylvania 
and Maryland, lasted for over seventy years. 

The settling of all other differences between colonies 
was also an item of power that had never appeared in 
any other plan. But the power to regulate the cur- 
rency, the establishment of a post-office, and the regu- 
lation of commerce and of the army had appeared in 
other plans. 

The power to appoint both civil and military officers 
was given by Franklin to Congress, and not to the ex- 
ecutive. In fact. Congress was the principal power. 
The executive was very weak and inefficient, and was 
to consist merely of an executive committee or council 
composed of twelve members of Congress, who during 
the recess of the Congress should manage the general 
continental business, receive applications from foreign 
countries, prepare matters for the consideration of the 
next meeting of Congress, and fill such offices as during 
the recess should become vacant. An executive of this 
sort, composed of a number of persons, was a favorite 
notion of Franklin's, and was adopted in the constitution 
of Pennsylvania of 1776, largely, no doubt, through his 
influence. It was also adopted in the Articles of Con- 
federation, principally because the people were very 
jealous of executive power and feared leaving it in the 
hands of one man. 

The year after Franklin's plan was presented the 
Articles of Confederation were prepared. This was in 
the spring of 1776, when the movement towards the 
declaration of independence was in progress, and it 
seemed absolutely necessary to have some definite 

242 



Evolution of Federalism 

form of government for the united colonies. It was 
therefore the most serious and earnest attempt that 
had ever been made to frame a union and general 
government. 

The attempts at union in the previous hundred years 
had been no stronger than desires for greater con- 
venience in managing general affairs. If they failed, 
nothing much was lost. The colonies were no worse 
off than before, and still had the mother-country to rely 
on. But now, if independence was declared, the colo- 
nies would be adrift in the world, and must take their 
place as a regularly organized nation or perish. It 
would be extremely difficult to conduct the war and 
afterwards stand before the world as an independent 
people unless they had a regular form of government, 
which would enable them to send and receive ambassa- 
dors, make alliances with foreign countries, and organize 
their own forces of men, money, and opinion in an 
efficient manner. 

At the same time that the Declaration of Indepen- 
dence was being debated and shaped, the Continental 
Congress was considering with equal energy the Articles 
of Confederation, which were to form the most complete 
and advanced general government that had yet ap- 
peared. The subject was referred to a committee on 
June 12, 1776, and the committee reported July 12, 
soon after the Declaration of Independence was adopted. 
The articles of the new government were exhaustively 
debated and amended from time to time for the next 
two years, and were signed by the members of Con- 
gress July 9, 1778. After that three more years passed 

243 



Evolution of the Constitution 

away while they were discussed by the different States, 
and changes suggested. They were ratified slowly, and 
the adoption of them was not complete until Maryland 
gave her consent, March i, 1781. 

The care which was required, the long years of de- 
bate, the balancing and compromising of objections and 
conflicting interests, show that after all the experience 
and attempts of the previous hundred years it was still 
a difficult matter to frame a general government that 
should be more than a mere league or alliance. Yet 
without the previous attempts it could not have been 
done ; for when we read over the completed Articles 
of Confederation we find them made up of everything 
that had before appeared in plans of union, with additions 
and careful elaborations. 

The first draught of the Articles that was submitted 
to Congress had more resemblance to Franklin's plan 
of the year before, and was simpler in language, than the 
completed copy that was ratified by the States. The 
completed Articles, however, begin as many of the pre- 
vious plans had begun, — by guaranteeing to each State 
its local rights and liberties. But this guarantee is ex- 
pressed more completely and better than ever before. 
Each State is to retain its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right 
which is not by the Articles expressly delegated to the 
United States in Congress assembled. At the same 
time, the States agree, in very much the same form that 
they had formerly agreed in the plans, to enter into a 
firm league of friendship with one another for their 

common defence and general welfare. 

244 



Evolution of Federalism 

The problem which the New England union of 1643 
and Penn's plan of 1696 had struggled with, that is to 
say the inconveniences in the intercourse of the States, 
is dealt with in greater detail than formerly. The 
people of each State are to have free ingress and regress 
in all the others, enjoy the same privileges and immu- 
nities in trade and commerce, be subject to the same 
duties and restrictions, and persons charged with crime 
and fleeing into another State are to be delivered up. 
Then appears a new provision, to the effect that full 
faith and credit shall be given in each State to the 
records and judicial proceedings of every other State, 
which was repeated in a slightly simplified form in the 
Constitution. 

The general outline of the legislative department fol- 
lows very closely the old forms. Each State is to send 
delegates to a general legislative body called the Con- 
gress. The question which had been so long discussed 
as to whether the States should be represented equally 
or in proportion to their population is settled by a com- 
promise. Each State is to have delegates in propor- 
tion to its power, but no State shall be represented by 
less than two nor by more than seven. This was in con- 
formity with the suggestions of Franklin and others in 
the past. But the other side, who believed in equal rep- 
resentation, were quieted by the provision that although 
each State had a proportional representation, yet all its 
delegates together could have only one vote. A large, 
powerful State would, therefore, have influence by mere 
numbers and speech-making in proportion to its power, 
but when it came to a vote on any question its vote 

245 



Evolution of the Constitution 

would be no larger than that of the smallest community. 
This balancing arrangement was afterwards the basis 
for those provisions in the Constitution by which the 
representation in the House of Representatives was in 
proportion to population and in the Senate by equality 
of States. 

Franklin's plan of an executive composed of a com- 
mittee of members of Congress was carried out, and this 
committee was given the right to act in the recess of 
Congress in very much the way Franklin had recom- 
mended. 

Freedom of speech in the Congress was secured, and 
the same paragraph also protected members from arrest 
and imprisonment during the session. This was a new 
provision made necessary by the greater importance of 
the government that was being created. For the same 
reason the individual States were forbidden to send any 
embassy to or to treat in any way with foreign countries. 
Persons holding any office under the United States or 
any of the States were forbidden to receive any present, 
emolument, or title from a foreign state ; and the United 
States and the individual States were forbidden to grant 
any title of nobility. The States were also forbidden to 
enter into treaties or alliances with one another without 
the consent of Congress ; nor could they lay imposts or 
duties which might interfere with stipulations and treaties 
made by the Congress ; nor could they keep up any 
larger war establishment than was deemed necessary by 
the Congress ; nor engage in war without the consent of 
Congress unless they were actually invaded or had cer- 
tain advice of a contemplated invasion by Indians so 

246 



Evolution of Federalism 

imminent as not to admit of delay ; nor could they com- 
mission vessels of war or grant letters of marque except 
after a declaration of war by the Congress. 

These provisions were necessarily new, but the one 
which forbids the States to make war on their own ac- 
count unless actually invaded or threatened with invasion 
by the Indians is very like the provisions for the same 
purpose in the old plans of union, especially the New 
England union of 1643. 

Officers of the army of and below the rank of colonel 
were to be appointed by the legislature of the State 
where the troops were raised, and officers above that 
rank by the Congress. The expenses of war and gov- 
ernment were to be raised from the States and paid into 
a common fund in very much the same manner as in the 
previous plans, but the taxes were to be laid and levied 
by each State on its own people. Some of the previous 
plans, notably FrankHn's of 1754, had, as we have seen, 
given the general government power to lay and levy 
these taxes. This had been a long step towards federal- 
ism, — in fact, rather too long. The people were not 
prepared for it, and were uncertain about allowing it. 
We find it appearing and disappearing in the various 
plans until it is established in the Constitution. 

The powers given to the general government are, of 
course, interesting, but they are not so large nor so 
numerous as we might expect. Some of them had be- 
come absolutely necessary by the new circumstances of 
independence, such as the powers to send and receive 
ambassadors, enter into treaties and alliances, establish 
rules for captures on land and water, grant letters of 

247 



Evolution of the Constitution 

marque, and establish courts to punish piracy and crimes 
committed at sea. 

The powers to regulate affairs with the Indians and to 
establish a post-office were of course given, but were not 
new. The sole power of determining peace and war is 
given to the Congress, as it had in all previous plans 
been given to the legislative department. The provision 
in Franklin's plan giving Congress the power to settle 
boundary disputes between the States is repeated in a 
more elaborate form. There is also the new and very 
important right of fixing the standard of weights and 
measures. 

There was no power given to regulate commerce, 
which is rather curious, as it had been given in previous 
plans. It might possibly have been inferred from the 
power to make commercial treaties. The general opin- 
ion seems to have been, however, that it was purposely 
omitted. The New Jersey legislature complained of 
its omission, and urged Congress to insert it by amend- 
ment ; and as time went on the complaints on this point 
became numerous. 

The few powers allowed Congress were restricted by 
a clause which prohibited the exercise of most of them 
except by the assent of nine of the thirteen States. Of 
the executive power still greater jealousy was shown, 
and for fear the presiding officer of the Congress might 
grow into a king they limited his term of service to one 
year, after which he was to be ineligible for re-election 
for two years. Even the committee of thirteen, which 
was to act as a sort of executive in the recess of Con- 
gress, could have no power delegated to it except by 

248 



Evolution of Federalism 

the votes of nine States, and the special powers that 
could not be exercised by Congress except by the vote 
of nine States could not be delegated to the committee. 

It was unquestionably a very weak government, — a 
mere league with so few of the attributes of federalism, 
and those few so restricted, that it was not a federal or 
a national government in any true sense of the word. 
The fashion has prevailed for a long time of attacking 
it in very severe terms, and even of questioning the 
patriotism of the men who framed it. But we must 
remember that it was simply a link in a long chain of 
evolution which had been progressing for over a hun- 
dred years, and continued, as we shall see, in the same 
steady course. It was a great advance on all the plans 
that had preceded it, and, for purposes of development, 
that was all that was required. 

The criticisms on its lack of federal power began 
almost as soon as it appeared. When signed by the 
members of Congress and sent to the States for ratifica- 
tion in 1778, most of those States had finished their 
new constitutions, on which they had been engaged for 
several years. Constitution-making was the order of 
the day ; everybody was prepared for discussion, and 
no previous plan of union received such serious and 
trained consideration. 

Though the prevailing sentiment seems to have been 
that not enough power was given, there were many who 
saw in the Articles of Confederation a menace to the sov- 
ereignty of the States. But even this State-rights party, 
while they wished greater safeguards for local liberty, 

wanted at the same time more power and efficiency in 

249 



Evolution of the Constitution 

the general government : so inevitable is the develop- 
ment of a thought when once fairly started on its way. 

In South Carolina, William Henry Drayton, chief 
justice of the State, addressed the assembly when the 
Articles came before them for approval. He was an 
able, accomplished man, and in the course of his speech 
he laid before them a plan of union of his own, which 
has ever since been known by his name. It was simply 
a redraughting of the Articles in his own language, with 
additions and developments. He wished to secure the 
rights of the States, and especially the Southern inter- 
est ; and he even went so far as to provide that each 
State should not only keep up such military establish- 
ment as it pleased, but should have a *' naval seminary." 
Nevertheless he developed the federal power, and 
strongly urged the necessity for it. 

He gave Congress the right to define treason and its 
punishment and the right to levy taxes independently of 
the States. The right to levy taxes, though omitted in 
the Articles, had appeared, as we have seen, in previous 
plans, and was now again introduced. But the right to 
define and punish treason was new, and a distinct mark 
of the increase of federal feeling ; for treason is a crime 
against a nation, not against a league or union. 

He created regular executive departments of war, 

navy, and treasury. He also provided for a census to 

be taken every seven years ; but it was to be taken by 

each State, and not by the general government in the 

manner afterwards adopted. His greatest advance in 

federalism, however, was a provision to the effect that 

if a State failed to pay its quota it was to be assessed 

250 



Evolution of Federalism 

double, and if it still refused it was to be subdued and 
brought to terms by Congress by force of arms. 

This was the first method any one had formulated for 
compelling obedience to the commands of the confed- 
eracy. The weakness of Congress in this respect, and 
the mere advisory nature of all its acts, had been the 
chief points of criticism. The only remedy that Drayton 
could think of was for Congress to make war on the 
offending State. People's minds still clung to the idea 
that everything must be done through the States. They 
had not as yet advanced to the conception of a general 
government which enforced its commands on the people 
as individuals without regard to State lines. They had 
partially developed this thought by suggesting that the 
government levy taxes on the people at large ; but it 
had gone no farther. 

Drayton was very liberal in his grants of federal 
power ; but, at the same time, like the framers of the 
Articles, he cramped and injured all he gave by re- 
quiring that all important acts of the Congress must 
have the assent of eleven out of the thirteen States, — an 
increase of two over the number required in the Articles. 

For the next ten years the efforts for stronger feder- 
alism were continuous. In 1780 New York and the 
New England States met by delegates at Hartford and 
recommended that more power for coercing the States 
be given to Congress. This report was read in Con- 
gress, and Pennsylvania and New Jersey supported it. 
A committee of Congress also recommended an in- 
crease of power. 

In 1782 there was a movement in New York to call 

251 



Evolution of the Constitution 

a convention to revise the Articles, but nothing came of 
it. More nearly successful was the attempt to give 
Congress the power to levy duties on imports, — a sugges- 
tion for increased power, which now took definite shape. 
It was assented to by all the States except Rhode Island, 
but while efforts were being made to secure Rhode 
Island Virginia withdrew her approval. 

The war with England was now over, and great diffi- 
culties were immediately experienced because Congress 
had not been given the power to regulate commerce. 
Each State was making its own regulations, and the 
British government, seeing its opportunity to break up 
the union, undertook to deal with each State separately, 
and prohibited American ships from trading with Eng- 
lish colonies. It seemed as if the Revolution had been 
fought in vain. Congress attempted to gain prohibitory 
powers over commerce for fifteen years by the assent of 
nine States, but without success." Washington, Jefferson, 
and other leading men made most earnest exertions, 
and Washington, from his retirement at Mount Vernon, 
sent urgent letters to Congress and the governors of all 
the States. But the government grew weaker instead 
of stronger, and at the session of Congress in 1784 four 
States were absent, three withdrew in disgust, and the 
remaining delegates returned home. 

It was at this time that Noah Webster's pamphlet, 
"Sketches of American Policy," appeared. It urged 
with much force that the government act directly on 
the people at large instead of on the States, and that 
the general government be modelled on the forms of 
the State governments. 

252 



Evolution of Federalism 

These two suggestions, taken together, were the most 
important and far-reaching that had thus far been made 
by any one man. The conception of the general gov- 
ernment at that time, as it had developed out of the old 
plans of union, was that it should consist of a simple 
representative body which should transact all the busi- 
ness of the union, executive as well as legislative. There 
was no separate executive department, — for the execu- 
tive committee was merely a committee of Congress and 
its powers were very much restricted, — and there was 
no judicial department unless Congress chose to create 
one, and even if created by Congress its jurisdiction 
would be confined to cases of piracy, capture, and felo- 
nies committed on the high seas. 

Webster suggested that all this primitive arrangement 
be abolished, and that the double-branch legislature, with 
the distinct executive and judicial departments that pre- 
vailed in the State governments, be adopted. It was a 
fertile suggestion, and seems to have settled the question, 
for when the convention met in 1787 the minds of its 
members were made up on this point. Thus the two 
lines. of development of which we have been treating 
joined their forces in the convention that framed the 
Constitution, — the line that had been developing the 
administrative parts of government from Sir Walter 
Raleigh's charter of 1584 through the charters and con- 
stitutions of colonial times and the constitutions of 1776, 
and the line that had been developing federalism from 
the New England union of 1643. 

Webster seems to have been the first person who 

wrote of the importance of joining these two lines of 

253 



Evolution of the Constitution 

development, and he has not yet received full credit 
for it. His other suggestion was of equal if not greater 
importance, namely, that the government should act 
directly on individuals instead of on the States, and, 
although there seems to be no passage in the pamphlet 
which announces this doctrine in so many words, there 
are several which imply it. He wrote to Madison com- 
plaining that he had not received the full reward of 
recognition, and Madison replied that his services were 
well known and recognized. His pamphlet has now 
become very scarce and should be reprinted, for there 
seem to be only two copies of it in existence, — one in 
the Boston Athenaeum and the other in a collection in 
Brooklyn. 

But, in spite of plans, suggestions, and appeals to 
patriotism, the confusion was becoming greater. Each 
State was regulating its own commerce, duties on imports 
were unequal, and the States were discriminating against 
one another and soon began to levy duties on one an- 
other's goods as if each had been a foreign country to all 
the others. The currency of each State also varied from 
the currency of all the others, each had its own financial 
laws, and some of them passed stay laws and had other 
contrivances to prevent the collection of debts. The 
masses of the people, overwhelmed with debt, were clam- 
oring for fresh issues of paper money. Some of them 
became anarchists and preached the abolition of all 
courts and law. In Massachusetts and New Hampshire 
these wild opinions brought on actual riot and rebellion ; 
the courts were dispersed and the legislature intimidated 
by armed mobs. 

254 



Evolution of Federalism 

In the midst of all this demoralization, in the year 
1785, Maryland and Virginia wanted to connect the 
Potomac with the Ohio for the sake of their commercial 
interests, and Maryland, Pennsylvania, and Delaware 
wanted a canal to connect the Chesapeake with the 
Delaware. This slight bond of common commercial 
interest among four States led to the suggestion of a 
convention to regulate the commerce of the whole 
Union. The first meeting at Annapolis was of five 
States, — New York, New Jersey, Delaware, Pennsyl- 
vania, and Virginia, — and after a short session the mem- 
bers adjourned, with a recommendation for a meeting 
of all the States to devise measures for a general govern- 
ment adequate to the exigencies of the Union. 

In the mean time a committee of Congress recom- 
mended that the Articles be amended so as to give Con- 
gress power to regulate foreign and domestic trade, 
collect duties, punish treason and crimes on the high 
seas, create a new system of revenue, and establish an 
appellate court of seven judges with jurisdiction over 
certain general questions. The suggestion that Congress 
regulate domestic trade was new. All previous powers 
over commerce referred to foreign commerce alone. 
But the last suggestion of all — the idea of an appellate 
federal court — was not only new, but striking, and 
marks the beginning of the federal judiciary. 

The States were now gradually giving their approval 
to the assembling of a general convention, and it met in 
May, 1787, at Philadelphia. A few days after it had 
assembled, Randolph, of Virginia, presented some gen- 
eral propositions to show how the Articles of Confedera- 

255 



Evolution of the Constitution 

tlon might be enlarged. This plan of Randolph's adopts 
partially the idea set forth by Noah Webster that the 
general government should act directly on the people 
instead of on the States. 

He adopts, however, in its fulness, that other idea of 
Webster's, that the arrangement of a single representa- 
tive body acting as legislature and executive be aban- 
doned and that the government be framed on the model 
of the State governments, with separate departments of 
legislature, executive, and judiciary. Randolph's plan 
was the first attempt to carry out this idea, and we 
find him providing for two houses of legislature, an ex- 
ecutive elected by the legislature, and a judiciary de- 
partment consisting of an appellate court and inferior 
tribunals. 

The jurisdiction given the judiciary is expressed 
vaguely, but is quite large, and contains the germs of 
a great deal that was afterwards given. Piracies and 
felonies on the seas and captures from enemies he of 
course included, and these had appeared before ; but he 
adds cases of revenue collection and cases in which 
foreigners and citizens of other States may be interested. 
Thus an important part of the present jurisdiction of the 
United States courts — namely, suits between citizens of 
different States — was distinctly suggested. He added 
the very vague jurisdiction of " questions which involve 
the national peace and harmony," and he also referred 
to these courts " impeachments of any national officer." 

He recommended for the first time that a republican 

form of government and the integrity of its territory be 

guaranteed to each State. Representation in both 

256 



Evolution of Federalism 

houses of the legislature was to be in proportion to the 
quotas of contribution or to the number of free inhab- 
itants, " as the one or the other might seem best in differ- 
ent cases." The lower house was to be elected by the 
people of the several States, and here he followed Web- 
ster's general recommendation that the government 
should be of the people at large, and not a mere repre- 
sentation of States. 

The upper house was to be elected by the lower out 
of a proper number of persons nominated by the indi- 
vidual legislatures. Certainly a rather strange sugges- 
tion, yet showing a hint of the future Senate as the 
representative of the States. 

In giving power to the legislature he said that it 
should have the same that was already exercised by 
Congress under the Articles of Confederation, and also 
should legislate in all cases in which the separate States 
were incompetent or in which the harmony of the 
United States might be interrupted by individual legis- 
lation. This was very general, and, when filled in with 
a few particular instances, would be ample. 

The coercive power to enforce commands, which was 
so lacking in Congress under the Articles, he attempted 
to supply, as Drayton had attempted, by giving power 
** to call forth the force of the Union against any member 
of the Union failing to fulfil its duty." 

But the most curious provision was a grant to the 
legislature of power to negative all laws passed by the 
several States contravening the articles of union. This 
was an attempt to prevent unconstitutional legislation, 
as we should now call it. The necessity of some such 
17 257 



Evolution of the Constitution 

provision had been long felt> even in colonial times, and 
we have already considered the remedies proposed, from 
that in Locke's constitution for Carolina down to the 
council of censors in the Pennsylvania constitution of 
1776. 

Besides the power in the national legislature to nega- 
tive unconstitutional laws of the States, Randolph added 
another security, in a council of revision composed of 
the executive and ** a convenient number of the national 
judiciary," which should examine the acts not only of 
the State legislatures but also of the national legislature. 
The dissent of this council in the case of an act of the 
national legislature was to be a rejection unless the act 
were passed again. In the case of acts of State legis- 
latures the council was apparently intended to act as 
a check upon the national legislature's declaring them 
unconstitutional. The council was to consider the act 
in question before the negative of the national legisla- 
ture became final, and if the council dissented the act 
of the State was to stand valid unless again negatived by 
the national legislature. This arrangement seems to 
have been a combination of the plan of Locke and the 
council of censors of Pennsylvania. 

Immediately after Randolph had presented his plan, 
Charles Pinckney, of South Carolina, presented another, 
still more advanced and complete, and so nearly like 
the Constitution as finally adopted that at first sight 
there seems to be scarcely any difference. It was a more 
definite and detailed plan than Randolph's, which pro- 
fessed to be nothing but general heads and suggestions. 

It adopts in their entirety the two great ideas put 

258 



Evolution of Federalism 

forth by Webster, that the government should act di- 
rectly on the people and that it should be modelled on 
the State governments. Instead of beginning with the 
assertion that the States as separate bodies form the 
government, it begins with the words, ** We the people 
of the States do ordain, declare," etc., — the first use of 
this expression. Everything that had been in Ran- 
dolph's plan, the Articles of Confederation, and all the 
previous plans seems to have been swept into this plan 
of Pinckney's. He amplifies and extends everything, 
adds new developments, and adopts more than ever the 
forms of the State governments. 

He has, of course, two houses of legislature, and, like 
Randolph, he has the upper house elected by the lower 
house, with the same suggestion that a certain number 
shall be chosen from each State, and that it shall repre- 
sent the States as the lower house represents the peo- 
ple. Money-bills must originate in the lower house, 
and cannot be altered by the Senate. This was taken 
from the State constitutions, and appears here for the 
first time in a federal document. The executive is called 
President, and is given the modified veto power taken 
from the constitution of New York, as shown in a pre- 
vious chapter, and the duty of furnishing information to 
the legislature, which was a provision taken from the 
same source. He is to take care that the laws be 
duly executed, commission all officers, grant pardons 
and reprieves, be commander-in-chief of the army and 
navy, — all of which are ideas taken from the various 
constitutions of the States. 

The powers granted to the legislature are given almost 

259 



Evolution of the Constitution 

in the very words afterwards adopted in the Constitu- 
tion. Everything that had been previously suggested 
is included. The legislative department is to lay and 
collect not only taxes, but also duties, imposts, and ex- 
cises ; to regulate commerce with foreign nations, and 
among the several States, borrow money, establish post- 
offices, raise armies, equip fleets, coin money, establish 
a judiciary, and punish treason. 

The new powers are to subdue a rebellion in any State 
on the application of its legislature ; to exercise exclu- 
sive jurisdiction in dock-yards, arsenals, and forts ; to 
establish military and post roads, a university, and uni- 
form rules of naturalization ; to have exclusive juris- 
diction in a tract of land ten miles square for the seat 
of government ; to punish counterfeiting and offences 
against the laws of nations ; to organize the militia of 
the several States ; and, finally, a very necessary addition, 
— namely, the right " to make all laws necessary for 
carrying the foregoing powers into execution." 

The power to declare war was given exclusively to 
the Senate, also the power to appoint ambassadors and 
judges of the Supreme Court and to regulate the man- 
ner of deciding boundary disputes between the States. 

The power to regulate commerce was slightly re- 
stricted by the requirement of the assent of two-thirds 
of each house ; and both houses were prohibited from 
granting any title of nobility or passing any law on the 
subject of religion or abridging the liberty of the press. 
The privilege of the writ of habeas corpus was not to 
be suspended except in case of rebellion or invasion, as 

in the Massachusetts constitution of 1780. 

260 



Evolution of Federalism 

It was certainly a very advanced and complete con- 
stitution. The restrictions on the rights of the States, 
however, were very much the same that had appeared 
before, and not so numerous as they afterwards became 
in the Constitution. There was no provision for pre- 
venting the passage of unconstitutional laws by the gen- 
eral government, but the States were prevented from it 
by giving the national legislature the right to annul 
their laws, as Randolph had suggested. 

Two other plans were afterwards offered to the con- 
vention, one by Paterson, of New Jersey, and the other 
by Alexander Hamilton. But neither of them was as 
complete as Pinckney's, and they seem to have been 
aside from the line of development. Pinckney's was 
directly in the line, and so close to the Constitution as 
adopted, not only in its general provisions, but also in 
language, that the difference can be dismissed in a few 
words. 

Pinckney's plan began with the words, "We the 
people of the States of New Hampshire, Massachusetts," 
etc., mentioning each one. The Constitution begins, 
"We the people of the United States," getting still 
closer to the conception that it is the people, and not 
the States, that create the government. In the Consti- 
tution the Senate is elected by the legislatures of the 
different States, two from each State, instead of being 
elected by the lower house from citizens in each State, 
as in Pinckney's and Randolph's plans. In the Consti- 
tution the Senate is to try impeachments instead of the 
judiciary ; a vice-president is added, and duties, im- 
posts, and excises must be uniform throughout the 

261 



Evolution of the Constitution 

United States. In the powers of Congress there are 
the new ones of regulating commerce with the Indian 
tribes, estabHshing uniform laws on the subject of 
bankruptcies, and granting patents and copyrights. 
The others are all taken from Pinckney's plan, in many 
instances word for word. 

The President's powers in the Constitution differ 
somewhat from those given in Pinckney's plan. The 
President shares with the Senate the right to make 
treaties and to appoint ambassadors and judges, which 
Pinckney gave exclusively to the Senate ; and the judi- 
cial department has a wider scope than Pinckney 
gave it. 

The provision in the Constitution prohibiting the 
States from passing any law impairing the obligation of 
contracts was altogether new, and requires some discus- 
sion. It was unknown to any of the laws of Europe or, 
indeed, of the world, and seems to have been altogether 
the result of some very bitter experience in Pennsyl- 
vania. It was introduced into the Constitution by James 
Wilson, one of the delegates from that State. 

During colonial times, the College of Philadelphia, 
founded by Franklin, had been in the hands of the 
Church of England people and the proprietary party of 
the colony. The provost of the college. Dr. Smith, had 
been a party man of considerable violence, and the col- 
lege. Dr. Smith, and the proprietary party were greatly 
disliked by the masses of the people in Pennsylvania. 
When the Revolution came the masses got into power 
and proceeded to revenge themselves on their old ene- 
mies. They drove from office, and even from social 

262 



Evolution of Federalism 

influence, the class of men who had formerly ruled the 
commonwealth, until that class were gathered together 
in the college as their last stronghold. 

Among this class were Robert Morris and James 
Wilson, signers of the Declaration of Independence, who 
stood high in national councils, but were in a minority 
in the government of their State. The majority saw an 
opportunity to injure them by destroying their college, 
and an act of the State legislature was passed in No- 
vember, 1779, declaring the college charter void, dis- 
solving the board of trustees and the faculty, and giving 
all the property of the institution to new trustees, who 
were, of course, selected by the majority party. This 
was a severe blow to the interests of higher education in 
Pennsylvania, from which they are only just recovering. 

The new college created on the ruins of the old one 
was a failure, and in 1789 the legislature repented of 
its act of spoliation and returned the confiscated prop- 
erty to the old College of Philadelphia. The two col- 
leges — the old, restored one and the new one — existed 
side by side for some years, until at last a union was 
effected which produced the present University of Penn- 
sylvania. 

This spoliation of the college had been done in the 
teeth of a provision of the State constitution which pro- 
tected chartered institutions from such attacks. But 
there was no way of enforcing the State constitution, 
and the legislature did what it pleased. People began 
to realize that all educational institutions, as well as 
charitable and business enterprises, were at the mercy 

of the State legislature, and this feeling was intensified 

263 



Evolution of the Constitution 

when the same legislature, in 1785, annulled the charter 
of the Bank of North America. Something, it was gen- 
erally believed, must be done to give the new national 
government the power to prevent such deeds. Wilson, 
who had been a friend and supporter of both the bank 
and the college, solved the problem by providing in the 
national document that " no State shall pass any law 
impairing the obligation of contracts." It is a simple, 
short sentence, but it has stood the test of nearly a hun- 
dred years of judicial decision, and the principle is now 
well established that the granting of a charter is a con- 
tract between the legislature and the corporation which 
cannot afterwards be impaired or altered by the legis- 
lature without the corporation's consent. 

Under this decision has been built up the enormous 
power of railroads, manufactories, and other business 
corporations which have played so important a part 
in the development of the United States. This simple 
sentence, backed by the power of the general govern- 
ment, has protected those enterprises from Granger, 
Populist, and other fanatical movements in different 
States which would otherwise have crippled or destroyed 
them. Sometimes a belief has seemed to be gaining 
ground that this clause protected the corporations too 
well, and gave them too much power ; but the havoc 
that State legislatures committed before there was such 
protection seems to show that if the protection is ex- 
cessive it is excess on the safer side. It has given a 
stability to investments and enterprises, commercial as 
well as religious, collegiate, and scientific, which could 

not have been had without it. 

264 



Evolution of Federalism 

When the Constitution was finally adopted by the 
people in 1789, the desire for a firmer union and stronger 
government was gratified, and development almost 
ceased. The hundred years that have since elapsed 
have brought little change except a few amendments 
extending somewhat the federal power over the States, 
and some restricting the federal power. The first eleven 
amendments are usually considered as a part of the 
original Constitution, because they were adopted imme- 
diately after the Constitution went into effect, and they 
contain, for the most part, those bills-of-rights pro- 
visions, securing trial by jury, freedom of religion and 
of the press, and freedom from unreasonable search, 
which, as we have seen, had grown up as restrictions on 
the power of the individual States. The people insisted 
that there should be similar restrictions on the national 
government. 

The essential features of the Constitution, however, 
are unchanged. The Senate and the House of Repre- 
sentatives and their relations to each other are the same. 
The President and his duties and relations to Congress 
have not altered. In fact, our government has been 
in these respects almost stationary during a century in 
which the most conservative European governments 
have suffered considerable change. 

Not only have the administrative parts of the govern- 
ment which were evolved from the forms of the State 
constitutions remained unchanged, but the federalism, 
the nationality, and the indestructibility of the Union 
are unaltered. As soon as the new Constitution was sub- 
mitted to the States for approval in 1788, the party that 

265 



Evolution of the Constitution 

had always been jealous of any interference with State 
rights complained bitterly that it was a national govern- 
ment, and not a confederacy, — that it was a creation of 
the people, and not of the States. Opposition to its 
approval was organized on this ground, and the debates 
of the State conventions, especially those of Virginia, 
Maryland, and Pennsylvania, disclose in full the argu- 
ments of those who urged its rejection, because, as 
Patrick Henry put it, the opening sentence was "We 
the people" instead of **We the States." But the ma- 
jority of the people ratified it in the form the framers 
gave it and intended to give it, — a national Union which 
could be broken only by rebellion and revolution. 



266 



CHAPTER VII. 

THE EVOLUTION OF FEDERALISM SHOWN IN DETAIL. 

I. Union and Representation. 

This section shows the beginnings of the various plans 
of union, and also the attempts to solve the question 
how the provinces should be represented In a union. 
It was thought by some that the provinces should be 
all equal in their representation, and by others that each 
should be represented according to its population, or 
power, or by the amount of its contribution towards the 
objects of the union. The small provinces, of course, 
favored equal representation, and the large ones repre- 
sentation by population or power. It seems probable, 
however, that there was a majority in favor of repre- 
sentation by population, but all were agreed that it 
could not be accomplished without an accurate census, 
which in colonial times was difficult to obtain. 

Attempts were made to satisfy all parties by giving 
representatives to each province according to its popu- 
lation, but allowing each province only one vote. In 
the Constitution this same plan was carried out by allow- 
ing representation by population in the lower house and 
representation by States in the Senate, and for carrying 
this into effect it was provided that a census should be 
taken every ten years. 

Some quotations from State constitutions are given 
because they show the development of the idea that 
representation should be based on an accurate enumera- 

267 



Evolution of the Constitution 

lion of the people. In England the representation in 
Parliament was not based on any such enumeration, but 
was confessedly unequal, and large bodies of the people 
were without any representation at all. 

" It is also agreed that for the managing and concluding of all 
affairs proper and concerning the whole confederation two com- 
missioners shall be chosen by and out of each of these four juris- 
dictions, — namely, two for the Massachusetts, two for Plymouth, 
two for Connecticut, and two for New Haven, — ^being all in church 
fellowship with us." (New England Union of 1643.) 

' • That in order to it two persons well qualified for sense, so- 
briety, and substance be appointed by each province as their 
representatives or deputies, which, in the whole, make the congress 
to consist of twenty persons." (Penn' s Plan of Union, 1696.) 

' ' Deputies would be more equally proportioned in manner fol- 
lowing, — viz. : Virginia, 4 ; Maryland, 3 ; New York, 2 ; Boston, 3 ; 
Connecticut, 2 ; Rhode Island, 2 ; Pennsylvania, i ; the two Caro- 
linas, I ; each of the two Jerseys, i." (A Virginian's Plan, 1701.) 

'• That the said captain-general ... be attended with a 
general council, to be constituted of two members from the as- 
sembly of each province, and that one representative or deputy 
from each province be changed or re-elected every year, which 
would the better inform the said council of the condition of every 
province to the contributing towards the preservation of the 
whole." (Lord Stair's Plan, 1 72 1.) 

"It is further humbly proposed that two deputies shall be 
annually elected by the council and assembly of each province, 
who are to be in the nature of a great council or general conven- 
tion of the estates of the colonies, and by the order, consent, or 
approbation of the lieutenant or governor-general, shall meet 
together, consult, and advise for the good of the whole." (Daniel 
Coxe's Plan, 1722.) 

' ' That within months after the passing of such act the 

house of representatives in the several assemblies that happened 
to be sitting within that time, or that shall be especially for that 

268 



Federalism in Detail 

purpose convened, may and shall choose members for the grand 
council in the following proportions, that is to say : 

" Massachusetts Bay 7 

New Hampshire 2 

Connecticut 5 

Rhode Island 2 

New York 4 

New Jerseys 3 

Pennsylvania 6 

Maryland 4 

Virginia. 7 

North Carolina 4 

South Carolina 4 

"48 
" That after the first three years, when the proportion of money 
arising out of each colony to the general treasury can be known, 
the number of members to be chosen for each colony shall from 
time to time in all ensuing elections be regulated by that propor- 
tion (yet so as that the number to be chosen by any one province 
be not more than seven nor less than two)." (Franklin's Plan 

of 1754.) 

" It is humbly proposed by act of parliament that the house of 
representatives of each colony be enjoined, within a limited time 
after the passing of such act, to choose members to represent 
them in a grand council in the following proportion, viz. : 

" Massachusetts Bay 7 

Connecticut 5 

New York 4 

Pennsylvania ,. 6 

Virginia 7 

South Carolina 4 

New Hampshire 2 

Rhode Island 2 

New Jersey 3 

Maryland 4 

North Carolina 4 

In the whole 48 " 

(Hutchinson's Plan, 1754.) 

269 



Evolution of the Constitution 

' ' That the several assemblies shall choose members for the 
grand council in the following proportions, viz." [The propor- 
tion for each colony is left blank.] (Galloway's Plan, 1774.) 

• ' The number of delegates to be elected and sent to congress 
by each colony shall be regulated, from time to time, by the 
number of such polls returned, so as that one delegate be allowed 
for every five thousand polls." (Franklin's Articles of Confed- 
eration, 1775.) 

' ' But as representation in proportion to the number of taxable 
inhabitants is the only principle which can at all times secure 
liberty, and make the voice of a majority of the people the law of 
the land ; therefore the general assembly shall cause complete 
lists of the taxable inhabitants in the city and each county in the 
commonwealth respectively, to be taken and returned to them, on 
or before the last meeting of the assembly elected in the year 
one thousand seven hundred and seventy-eight, who shall appoint 
a representation to each, in proportion to the number of taxables 
in such returns ; which representation shall continue for the next 
seven years afterwards, at the end of which a new return of the 
taxable inhabitants shall be made, and a representation agreeable 
thereto appointed by the said assembly, and so on septennially 
forever." (Pennsylvania Constitution of 1776.) 

* ' That as soon after the expiration of seven years (subsequent 
to the termination of the present war) as may be a census of the 
electors and inhabitants in this State be taken, under the direction 
of the legislature. And if, on such census, it shall appear that 
the number of representatives in assembly from the said counties 
is not justly proportioned to the number of electors in the said 
counties respectively, that the legislature do adjust and apportion 
the same by that rule. And further, that once in every seven 
years, after the taking of the said first census, a just account of 
the electors resident in each county shall be taken, and if it shall 
thereupon appear that the number of electors in any county shall 
have increased or diminished one or more seventieth parts of the 
whole number of electors, which, on the said first census, shall be 
found in this State, the number of representatives for such county 
shall be increased or diminished accordingly, that is to say, one 

270 



Federalism in Detail 

representative for every seventieth part as aforesaid." (New 
York Constitution of 1777.) 

"For the more convenient management of the general inter- 
ests of the United States, delegates shall be annually appointed 
in such manner as the legislature of each state shall direct, to 
meet in congress on the first Monday in November in every 
year, with a power reserved to each state to recall its delegates, 
or any of them, at any time within the year, and to send others 
in their stead for the remainder of the year. 

"No state shall be represented in congress by less than two 
nor by more than seven members ; and no person shall be capa- 
ble of being a delegate for more than three years, in any term of 
six years ; nor shall any person, being a delegate, be capable of 
holding any office under the United States for which he, or an- 
other for his benefit, receives any salary, fees, or emolument of 
any kind. 

' ' Each state shall maintain its own delegates in any meeting 
of the states, and while they act as members of the committee 
of the states. 

' ' In determining questions in the United States in congress 
assembled, each state shall have one vote." (Articles of Con- 
federation, 1778.) 

• ' Each state shall be represented in congress by not less than 
three nor more than seven delegates, and shall have one vote in 
congress, where all questions shall be determined by a majority 
of votes, except such as shall be hereafter mentioned. ' ' (Dray- 
ton' s Articles of Confederation, 1778.) 

" That at the expiration of seven years after the passing of this 
constitution, and at the end of every fourteen years thereafter, the 
representation of the whole state shall be proportioned in the 
most equal and just manner according to the particular and com- 
parative strength and taxable property of the different parts of 
the same, regard being always had to the number of white in- 
habitants and such taxable property." (South Carolina Consti- 
tution of 1778.) 

* ' The rights of suffrage in the national legislature ought to be 
proportioned to the quotas of contribution, or to the number of 

271 



Evolution of the Constitution 

free inhabitants, as the one or the other rule may seem best in 
different cases." (Randolph's Plan, 1787.) 

"Until a census of the people shall be taken, in the manner 
hereinafter mentioned, the house of delegates shall consist of 
, to be chosen from the different states in the following pro- 
portions : For New Hampshire, ; for Massachusetts, ; for 
Rhode Island, ; for Connecticut, ; for New York, 

for New Jersey, ; for Pennsylvania, ; for Delaware, 

for Maryland, ; for Virginia, ; for North Carolina, 

for South Carolina, ; for Georgia, ; and the legislature 

shall hereinafter regulate the number of delegates by the number 
of inhabitants, according to the provisions hereinafter made, at the 
rate of one for every thousand." (Pinckney's Plan, 1787.) 

' ' Representatives and direct taxes shall be apportioned among 
the several states which may be included within this Union, ac- 
cording to their respective numbers, which shall be determined 
by adding to the whole number of free persons, including those 
bound to service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The actual enumeration 
shall be made within three years after the first meeting of the 
Congress of the United States, and within every subsequent term 
of ten years in such manner as they shall by law direct. The 
number of representatives shall not exceed one for every thirty 
thousand, but each state shall have at least one representative ; 
and until such enumeration shall be made the State of New 
Hampshire shall be entitled to choose three ; Massachusetts, 
eight ; Rhode Island and Providence Plantations, one ; Con- 
necticut, five ; New York, six ; New Jersey, four ; Pennsylvania, 
eight ; Delaware, one ; Maryland, six ; Virginia, ten ; North 
Carolina, five ; South Carolina, five ; and Georgia, three. 

"The senate of the United States shall be composed of two 
senators from each state." (The Constitution.) 

' ' Representatives shall be apportioned among the several 
states according to their respective numbers, counting the whole 
number of persons in each state, excluding Indians not taxed. 
But when the right to vote at any election for the choice of electors 
for President and Vice-President of the United States, representa- 

272 



Federalism in Detail 

tives in congress, the executive and judicial officers of a state, 
or the members of the legislature thereof, is denied to any of the 
male inhabitants of such state, being twenty-one years of age and 
citizens of the United States, or in any way abridged, except for 
participation in rebellion or other crime, the basis of representa- 
tion therein shall be reduced in the proportion which the number 
of such male citizens shall bear to the whole number of male 
citizens twenty-one years of age in such state." (Fourteenth 
Amendment to the Constitution.) 

2. Census. 
The clause in the Constitution providing for a census 
of all the inhabitants every ten years is of great impor- 
tance, for on it depend the representation in Congress 
and the confidence of the people that they are fairly 
represented. Unless there always had been this feeling 
that they were fairly represented, it would have been 
impossible to preserve the Union. Equality in this, as 
in other matters, is one of our essentials, and from the 
earliest colonial times it was felt that it could be accom- 
plished only by mathematical accuracy, or the nearest 
approximation to such accuracy as could be attained. 

"That the commissioners for each jurisdiction from time to 
time, as there shall be occasion, bring a true account and number 
of all the males in every plantation, or any way belonging to, or 
under their several jurisdictions, of what quality, or condition 
soever they be, from sixteen years to three score, being inhab- 
itants there." (New England Union of 1643.) 

" And the delegates are to bring with them to every congress 
an authenticated return of the number of polls in the respective 
provinces, which is to be taken triennially for the purposes above 
mentioned" [i.e., for apportioning the number of delegates to be 
allowed each colony]. (Franklin's Articles of Confederation, 
I775-) 

18 273 



Evolution of the Constitution 

" That as soon after the expiration of seven years (subsequent 
to the termination of the present war) as may be a census of the 
electors and inhabitants in this state be taken under the direction 
of the legislature. And, further, that once in every seven years 
after the taking of the said first census a just account of the 
electors resident in each county shall be taken," (New York 
Constitution of 1777.) 

"The legislature in the several states shall, from time to time, 
cause all the white inhabitants therein to be numbered as nearly 
as may be ; the persons appointed to number them shall be sworn 
to make the most diligent and accurate inquiry that they can, and 
to return to the executive power in the state the true number they 
shall so find ; they shall be paid for their trouble and punished 
for their neglect, if any there shall be ; the executive authority in 
each state, having received such a return, shall without loss of 
time send it, or an exact copy of it, to the congress ; such a return 
to the congress shall be made before the first day of January next, 
and in every seventh year thereafter." (Drayton's Articles of 
Confederation, 1778.) 

' ' The actual enumeration shall be made within three years 
after the first meeting of the congress of the United States and 
within every subsequent term of ten years, in such manner as 
they shall by law direct." (The Constitution.) 

3. Name. 

* ' Wherefore it is fully agreed and concluded . . . that they 
all be and henceforth be called by the name of the United Colo- 
nies of New England." (New England Union of 1643.) 

• ' The name of this confederacy shall henceforth be the United 
Colonies of North America." (Franklin's Articles of Confedera- 
tion, I775-) 

' ' The style of this confederacy shall be * The United States 
of America.'" (Articles of Confederation, 1778.) 

"The style of the confederacy shall be the United States of 
America." (Drayton' s Articles of Confederation, 1778.) 

' ' The style of this government shall be ' The United States of 
America.' " (Pinckney's Plan, 1787.) 

274 



Federalism in Detail 

"We, the people of the United States, ... do ordain and 
estabhsh this constitution for the United States of America." 
(The Constitution.) 

4. General Powers of Congress. 

"Which shall bring full power from their several general 
courts respectively to hear, examine, weigh, and determine all 
affairs of our war or peace, leagues, aids, charges, and numbers 
of men for war, division, and spoils, and whatsoever is gotten by- 
conquest, receiving of more confederates for plantations into 
combination with any of the confederates, and all things of like 
nature which are the proper concomitants or consequence of such 
a confederation, for amity, offence, and defence, not intermed- 
dling with the government of any of the jurisdictions, which, by 
the third article, is preserved entirely to themselves." (New 
England Union of 1643.) 

' * That the president-general, by and with the advice and con- 
sent of the general council, hold and exercise all the legislative 
rights, powers, and authorities necessary for regulating and ad- 
ministering all the general police and affairs of the colonies, in 
which Great Britain and the colonies, or any of them, the colo- 
nies in general, or more than one colony, are in any manner con- 
cerned, as well civil and criminal as commercial." (Galloway's 
Plan, 1774.) 

" That the national legislature ought to be empowered to enjoy 
the legislative rights vested in congress by the confederation, 
and, moreover, to legislate in all cases to which the separate 
states are incompetent, or in which the harmony of the United 
States may be interrupted by the exercise of individual legisla- 
tion." (Randolph's Plan, 1787.) 

' ' The legislature of the United States shall have the power to 
make all laws for carrying the foregoing powers into execution." 
(Pinckney's Plan, 1787.) 

' ' The congress shall have power to lay and collect taxes, 
duties, imposts, and excises, to pay the debts and provide for 
the common defence and general welfare of the United States. 

275 



Evolution of the Constitution 

' ' To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this constitution in the government of the United States, 
or in any department or officer thereof." (The Constitution.) 

5. Presiding Officer of Congress. 
Besides the quotations given under this section from 
the plans of union, many more might be given from the 
colonial charters and constitutions and the constitutions 
of 1776. But, as they are all to the same effect in giving 
the lower house of the legislature the power to choose 
their presiding officer, it seems hardly necessary to print 
them. 

" It is further agreed that at each meeting of these eight com- 
missioners, whether ordinary or extraordinary, they, or six of 
them agreeing, as before, may choose their president out of them- 
selves, whose office and work shall be to take care and direct for 
order and a comely carrying on of all proceedings in the present 
meeting. But he shall be invested with no such power or respect 
as by which he shall hinder the propounding or progress of any 
business, or any way cast the scales, otherwise than in the prece- 
dent article is agreed." (New England Union of 1643.) 

"That the king's commissioners, for that purpose specially 
appointed, shall have the chair and preside in the said congress." 
(Penn's Plan of Union, 1696.) 

" That the grand council have power to choose their speaker." 
(Franklin's Plan of 1754.) 

' * That the assent of the president be made necessary to all 
acts of the council, saving the choice of a speaker." (Hutchin- 
son's Plan, 1754.) 

' ' That the general council shall have power to choose their 
own speaker." (Galloway's Plan, 1774.) 

"The United States in congress assembled shall have au- 
thority to appoint one of their number to preside : provided, that 
no person be allowed to serve in the office of president more than 

276 



Federalism in Detail 

one year in any term of three years." (Articles of Confedera- 
tion, 1778.) 

"The congress shall have power to appoint one of their num- 
ber to preside in it ; nor shall any person officiate as president 
of the congress longer than one year in any term of three years." 
(Drayton's Articles of Confederation, 1778.) 

" The House of Representatives shall choose their speaker and 
other officers." (The Constitution.) 

6. Restrictions on Congress. 

The idea of expressly limiting the legislative powers 
of the Union was of late growth, and began with the 
Articles of Confederation, which make the consent of 
nine States necessary to certain acts of Congress. 

But even then it was taken for granted that besides 
these express prohibitions all powers not expressly given 
Congress were impliedly denied. The Constitution was 
framed on this principle, but the fears and caution of 
the people compelled the adoption of the ninth and 
tenth amendments as additional safeguards, which de- 
clare that the rights possessed by Congress shall not be 
construed to disparage others possessed by the people, 
and that all powers not expressly given are reserved to 
the States or the people. 

"The United States, in congress assembled, shall never engage 
in a war, nor grant letters of marque and reprisal in time of 
peace, nor enter into any treaties or alliances, nor coin money, 
nor regulate the value thereof, nor ascertain the sums and ex- 
penses necessary for the defence and welfare of the United States, 
or any of them, nor emit bills, nor borrow money on the credit 
of the United States, nor appropriate money, nor agree upon the 
number of vessels of war to be built or purchased, or the number 
of land or sea forces to be raised, nor appoint a commander-in- 

277 



Evolution of the Constitution 

chief of the army or navy, unless nine states assent to the same ; 
nor shall a question on any other point, except for adjourning 
from day to day, be determined, unless by the votes of a majority 
of the United States, in congress assembled. ' ' (Articles of Con- 
federation, 1778.) 

"But the congress shall not declare what shall be treason 
against the United States, nor the punishment of it, but by the 
voice of each of the United States in congress ; nor shall the con- 
gress engage in war, nor enter into or conclude any treaty or 
alliance, nor ascertain the military land quota of the states, nor 
build, furnish or equip a naval force, nor rate or cause a general 
tax to be levied, nor appoint a generalissimo, nor nominate an 
admiralissimo, nor emit or borrow money, nor grant letters of 
marque and reprisal in time of peace, except by the consent of 
eleven votes in the congress ; nor shall the congress vest any of 
these powers in the committee of the United States ; nor shall the 
congress exercise any power but what is hereby expressly dele- 
gated to them. " (Drayton' s Articles of Confederation, 1778.) 

"The executive and a convenient number of the national 
judiciary ought to compose a council of revision, with authority 
to examine every act of the national legislature before it shall 
operate, and the dissent of the said council shall amount to a 
rejection urrless the act of the national legislature be again passed. ' ' 
(Randolph's Plan of 1787.) 

' ' All laws regulating commerce shall require the assent of two- 
thirds of the members present in each house." (Pinckney's Plan 
of 1787.) 

' ' The migration or importation of such persons as any of the 
states now existing shall think proper to admit shall not be pro- 
hibited by the congress prior to the year one thousand eight hun- 
dred and eight ; but a tax or duty may be imposed on such 
importation not exceeding ten dollars for each person. 

* ' The privilege of the writ of habeas corpus shall not be sus- 
pended unless when, in cases of rebellion or invasion, the public 
safety may require it. 

" No bill of attainder or ex-post-facto law shall be passed. 

' ♦ No capitation or other direct tax shall be laid unless in pro- 

278 



Federalism in Detail 

portion to the census or enumeration hereinbefore directed to be 
taken. 

" No tax or duty shall be laid on articles exported from any- 
state. No preference shall be given by any regulation of com- 
merce or revenue to the ports of one state over those of another ; 
nor shall vessels bound to or from one state be obliged to enter, 
clear, or pay duties in another. 

"No title of nobility shall be granted by the United States." 
(The Constitution.) 

" The enumeration in the Constitution of certain rights shall 
not be construed to deny or disparage others retained by the 
people." (Ninth Amendment to the Constitution.) 

"The powers not delegated to the United States by the con- 
stitution nor prohibited by it to the states are reserved to the 
states, respectively, or to the people." (Tenth Amendment to 
the Constitution.) 

7. Restrictions on the States. 

Federalism is impossible unless the uniting States sur- 
render some of their rights. To persuade them to such 
a surrender was a long and slow process ; yet it was 
seen to be a necessity from the beginning, and in the 
earliest union — the New England union of 1643 — there 
is a slight surrender. 

" And for that the justest wars may be of dangerous conse- 
quence, especially to the smaller plantations in these united colo- 
nies, it is agreed that neither the Massachusetts, Plymouth, 
Connecticut, nor New Haven, nor any of the members of any 
of them, shall, at any time hereafter, begin, undertake, or engage 
themselves or this confederation, or any part thereof, in any war 
whatsoever (sudden exigents with the necessary consequences 
thereof excepted, which are also to be moderated as much as the 
case will permit) without the consent and agreement of the fore- 
named eight commissioners, or at least six of them, as in the 
sixth Article is provided : And that no charge be required of any 

279 



Evolution of the Constitution 

of the Confederates in case of a defensive war till the said Com- 
missioners have met and approved the justice of the war, and 
have agreed upon the sum of money to be levied, which sum is 
then to be paid by the several Confederates in proportion accord- 
ing to the fourth Article. Nor shall any other plantation or juris- 
diction in present being, and not already in combination or under 
the jurisdiction of any of these Confederates, be received by any 
of them ; nor shall any two of the Confederates join in one juris- 
diction without consent of the rest, which consent to be interpreted 
as is expressed in the sixth Article ensuing." (New England 
Union of 1643.) 

* * But no colony shall be at liberty to declare war against any 
enemy, or to begin any hostilities, except they have the direction 
and allowance of the president and council." (Hutchinson's 
Plan, 1754.) 

"No colony shall engage in an offensive war with any nation 
of Indians without the consent of the congress, or grand coun- 
cil above mentioned, who are first to consider the justice and 
necessity of such war." (Franklin's Articles of Confederation, 

I775-) 

"No state, without the consent of the United States, in con- 
gress assembled, shall send any embassy to, or receive any em- 
bassy from, or enter into any conference, agreement, alliance, or 
treaty, with any king, prince, or state ; nor shall any person hold- 
ing any office of profit or trust under the United States, or any 
of them, accept of any present, emolument, office, or title of any 
kind whatever, from any king, prince, or foreign state ; nor shall 
the United States, in congress assembled, or any of them, grant 
any title of nobility. 

' ' No two or more states shall enter into any treaty, confedera- 
tion, or alliance whatever, between them, without the consent of 
the United States, in congress assembled, specifying accurately 
the purposes for which the same is to be entered into, and how 
long it shall continue. 

' ' No state shall lay any imposts or duties which may interfere 
with any stipulations in treaties, entered into by the United States, 
in congress assembled, with any king, prince, or state, in pursu- 

280 



Federalism in Detail 

ance of any treaties already proposed by congress to the courts 
of France and Spain. 

"No vessels of war shall be kept up in time of peace, by any 
state, except such number only as shall be deemed necessary, 
by the United States, in congress assembled, for the defence of 
such state or its trade ; nor shall any body of forces be kept up, 
by any state, in time of peace, except such number only as, in 
the judgment of the United States, in congress assembled, shall 
be deemed requisite to garrison the forts necessary for the defence 
of such state ; but every state shall always keep up a well-regu- 
lated and disciplined militia, sufficiently armed and accoutred, 
and shall provide and constantly have ready for use, in public 
stores, a due number of field-pieces and tents, and a proper 
quantity of arms, ammunition, and camp-equipage. 

' ' No state shall engage in any war without the consent of the 
United States, in congress assembled, unless such state be act- 
ually invaded by enemies, or shall have received certain advice 
of a resolution being formed by some nation, of Indians to in- 
vade such state, and the danger is so imminent as not to 
admit of a delay till the United States, in congress assembled, 
can be consulted ; nor shall any state grant commissions to 
any ships or vessels of war, nor letters of marque or reprisal, 
except it be after a declaration of war by the United States, in 
congress assembled, and then only against the kingdom or 
state, and the subjects thereof, against which war has been so 
declared, and under such regulations as shall be established by 
the United States, in congress assembled, unless such state be 
infested by pirates, in which case vessels of war may be fitted out 
for that occasion, and kept so long as the danger shall continue, 
or until the United States, in congress assembled, shall determine 
otherwise. 

' ' Every state shall abide by the determinations of the United 
States, in congress assembled, on all questions which, by this 
confederation, are submitted to them. And the articles of this 
confederation shall be inviolably observed by every state, and 
the Union shall be perpetual." (Articles of Confederation, 1778.) 

"Any state neglecting to have a representation in congress shall 

281 



Evolution of the Constitution 

nevertheless be bound by the act of congress as if its representa- 
tion was present. 

' ' Provided that such restrictions [by one state on citizens of 
another state] shall not extend to defeat the articles of this con- 
federation or any part thereof. Provided, also, that no duty, im- 
position, or restriction shall be laid by any state on the property of 
the United States, or of the government, in either of them, except 
in cases of embargo. 

" No state shall lay or allow to continue any prohibition, impost, 
or duty which may interfere with any treaty which shall be made 
by the congress with any foreign power ; no state shall engage in 
any war without the consent of the congress unless such state be 
actually invaded by an enemy or shall have received certain in- 
telligence of such hostile design formed by some nation of Indians 
and the danger is so imminent as not to admit of a delay ; no 
state shall grant letters of marque and reprisal but after a decla- 
ration of war by the congress, and then only against the power 
against whom the war has been so declared, except such state be 
infested by piracies, in which case vessels of war may be fitted 
out by that state for the occasion only ; no state shall enter into 
any conference, agreement, treaty, or alliance with any king, 
prince, or foreign states ; nor shall any person holding any office 
under the United States, or under any of them, accept of any 
present, emolument, office, or title from any king or foreign state 
without being thereby absolutely rendered forever incapable of 
any public trust under the United States, or any of them ; nor 
shall any of these states grant any title of nobility. 

' ' No state shall exercise any power hereby delegated to the 
congress." (Drayton's Articles of Confederation, 1778.) 

" The national legislature ought to be empowered to negative 
all laws passed by the several states contravening, in the opinion 
of the national legislature, the articles of union or any treaty 
subsisting under the authority of the union, and to call forth the 
force of the union against any member of the union failing to fulfil 
its duty under the articles thereof. 

"The executive and a convenient number of the national 
judiciary ought to compose a council of revision, with authority 

282 



Federalism in Detail 

to examine every act of a particular legislature before a negative 
thereon shall be final, and the dissent of the said council shall 
amount to a rejection unless the act of the particular legislature 
be again negatived by of the number of each branch." 

(Randolph's Plan, 1787.) 

' • No state shall grant letters of marque and reprisal, or enter 
into treaty, or alliance, or confederation ; nor grant any title of 
nobility ; nor, without the consent of the legislature of the United 
States, lay any impost on imports ; nor keep troops or ships of 
war in time of peace ; nor enter into compacts with other states or 
foreign powers ; nor emit bills of credit ; nor make anything but 
gold, silver, or copper a tender in payment of debts ; nor engage 
in war, except for self-defence when actually invaded or the dan- 
ger of invasion be so great as not to admit of a delay until the 
government of the United States can be informed thereof. And, 
to render these prohibitions effectual, the legislature of the United 
States shall have the power to revise the laws of the several states 
that may be supposed to infringe the powers exclusively delegated 
by this constitution to congress, and to negative and annul such 
as do." (Pinckney's Plan, 1787.) 

"No state shall enter into any treaty, alhance, or confedera- 
tion ; grant letters of marque and reprisal, coin money, emit bills 
of credit, make anything but gold and silver coin a tender in pay- 
ment of debts, pass any bill of attainder, ex-post-facto law, or law 
impairing the obligation of contracts, or grant any title of nobihty. 

' ' No state shall, without the consent of the congress, lay any 
imposts or duties on imports or exports except what may be abso- 
lutely necessary for executing its inspection laws, and the net 
produce of all duties and imposts laid by any state on imports or 
exports shall be for the use of the treasury of the United States, 
and all such laws shall be subject to the revision and control of 
the congress. No state shall, without the consent of congress, 
lay any duty of tonnage, keep troops or ships of war in time of 
peace, enter into any agreement or compact with another state or 
with a foreign power, or engage in war, unless actually invaded, 
or in such imminent danger as will not admit of delay. ' ' (The 
Constitution.) 

283 



Evolution of the Constitution 

8. State Sovereignty. 

While it is essential to federalism that the uniting 
States should surrender some of their rights, it is equally 
essential that they should preserve their remaining rights. 
Only in this way can the ideal of federalism be attained, 
— an indestructible union of indestructible States. As 
we have shown in the preceding section, the first at- 
tempt at union — the New England union of 1643 — con- 
tained a slight surrender of State rights. It also con- 
tained a guarantee that the remaining State rights should 
be inviolably preserved. These two counterpoising es- 
sentials of our system appeared at the very beginning, 
at the same time, and in the same document. Ameri- 
can federalism, at its first appearance in the year 1643, 
contained that foundation principle without which it 
cannot be preserved. 

" It is further agreed that the Plantations which at present are, 
cr hereafter shall be, settled within the limits of the Massachu- 
setts, shall be forever under the Massachusetts, and shall have 
peculiar jurisdiction among themselves in all cases as an entire 
body; and that Plymouth, Connecticut, and New Haven shall 
each of them have like peculiar jurisdiction and government 
within their limits, and in reference to the Plantations which 
already are settled, or shall hereafter be erected, or shall settle 
within their limits respectively : provided, that no other jurisdic- 
tion shall hereafter be taken in as a distinct head or member of 
this confederation ; nor shall any other Plantation or jurisdiction 
in present being, and not already in combination or under the 
jurisdiction of any of these Confederates, be received by any of 
them ; nor shall any two of the Confederates join in one jurisdic- 
tion without consent of the rest, which consent to be interpreted 
as is expressed in the sixth article ensuing." (New England 
Union of 1643.) 

284 



Federalism in Detail 

"That this general council do not meddle with or alter the 
manner of government in any province, but that the said general 
council may send advice to the assembly of any province touch- 
ing any matter which they conceive may be to the advantage of 
the province." (Lord Stair's Plan, 1721.) 

" The quota or proportion, as above allotted and charged on 
each colony, may, nevertheless, be levied and raised by its own 
assembly in such manner as they shall judge most easy and con- 
venient and the circumstances of their affairs will permit." 
(Daniel Coxe's Plan, 1722.) 

" Each colony may retain its present constitution except in the 
particulars wherein a change may be directed by the said act as 
hereafter follows. 

' ' But they shall not impress men in any colony without the 
consent of its legislature." (Franklin's Plan of 1754.) 

' ' The president and council shall not have power to impress 
men in any colony without the consent of its legislature." 
(Hutchinson's Plan, 1754.) 

' ' That a British and American legislature, for regulating the 
administration of the general affairs of America, be proposed and 
established in America, including all the said colonies, within and 
under which government each colony shall retain its present con- 
stitution and powers of regulating and governing its own internal 
police in all cases whatever." (Galloway's Plan, 1774.) 

"That each colony shall enjoy and retain as much as it may 
think fit of its own present laws, customs, rights, privileges, and 
peculiar jurisdictions within its own limits ; and may amend its 
own constitution, as shall seem best to its own assembly or con- 
vention." (Franklin's Articles of Confederation, 1775.) 

"Each state retains its sovereignty, freedom, and indepen- 
dence, and every power, jurisdiction, and right, which is not by 
this confederation expressly delegated to the United States in 
congress assembled. 

* ' When land forces are raised by any state for the common 
defence, all officers of or under the rank of colonel shall be ap- 
pointed by the legislature of each state respectively by whom 
such forces shall be raised, or in such manner as such state shall 

285 



Evolution of the Constitution 

direct, and all vacancies shall be filled up by the state which first 
made the appointment. 

"The taxes for paying that proportion [of the common fund 
for the general welfare] shall be laid and levied by the authority 
and direction of the legislatures of the several states within the 
time agreed upon by the United States. 

' ' Provided that no treaty of commerce shall be made [by 
the United States in congress assembled] whereby the legislative 
power of the respective states shall be restrained from imposing 
such imposts and duties on foreigners as their own people are 
subjected to, or from prohibiting the exportation or importation 
of any species of goods or commodities. 

* ' No state shall be deprived of territory for the benefit of the 
United States. 

' ' The United States, in congress assembled, shall also have 
the sole and exclusive right and power of regulating the trade and 
managing all affairs with the Indians not members of any of the 
states ; provided that the legislative right of any state, within 
its own limits, be not infringed or violated." (Articles of Con- 
federation, 1778.) 

"But it is declared the several states do possess and enjoy 
all those natural rights and powers of sovereignty not by this act 
delegated. And it is also declared that whenever the congress 
shall cease to observe these articles of confederation the several 
states shall be at liberty to declare themselves absolved from all 
obedience to that government. ' ' (Drayton' s Articles of Confed- 
eration, 1778.) 

' ' That the territory of each state ought to be guaranteed by 
the United States to each state." (Randolph's Plan, 1787.) 

' * No tax or duty shall be laid on articles exported from any 
state. No preference shall be given by any regulation of com- 
merce or revenue to the ports of one state over those of another ; 
nor shall vessels bound to or from one state be obliged to enter, 
clear, or pay duties in another. 

" No new state shall be formed or erected within the jurisdic- 
tion of any other state ; nor any state be formed by the junction 
of two or more states, or parts of states, without the consent of 

286 



Federalism in Detail 

the legislatures of the states concerned as well as of the con- 
gress." (The Constitution.) 

' ' The powers not delegated to the United States by the con- 
stitution nor prohibited by it to the states are reserved to the 
states respectively, or to the people." (Tenth Amendment to 
the Constitution.) 

9. Raising Money and Taxation. 

" It is by these confederates agreed that the charge of all just 
wars, whether offensive or defensive, upon what part or member 
of this confederation soever they fall, shall, both in men and pro- 
visions, and all other disbursements, be borne by all the parts 
of this confederation, in different proportions according to their 
different ability, in manner following, namely, that the commis- 
sioners for each jurisdiction from time to time, as there shall be 
occasion, bring a true account and number of all the males in 
every plantation, or any way belonging to or under their several 
jurisdictions, of what quality or condition soever they be, from 
sixteen years old to threescore, being inhabitants there. And 
that according to the different numbers which from time to time 
shall be found in each jurisdiction, upon a true and just account, 
the service of men and all charges of the war be borne by the 
poll ; each jurisdiction or plantation being left to their own just 
course and custom of rating themselves and people according to 
their different estates, with due respects to their qualities and 
exemptions among themselves, though the confederation take no 
notice of any such privilege ; and that according to their different 
charge of each jurisdiction and plantation, the whole advantage 
of the war (if it please God to bless their endeavors), whether it be 
in lands, goods or persons, shall be proportionably divided among 
the said confederates." (New England Union of 1643.) 

' ' That the general council, with the captain-general, have 
power to allot the portion of men and money (or money and men) 
which shall be the appointment of each province, to be fixed in 
gross, and the assembly of the province to direct by a law the 
ways of raising it." (Lord Stair's Plan of 1721.) 

287 



Evolution of the Constitution 

"That for these purposes they have power to make laws and 
lay and levy such general duties, imposts, or taxes, as to them 
shall appear most equal and just, considering the ability and 
other circumstances of the inhabitants in the several colonies, and 
such as may be collected with the least inconvenience to the peo- 
ple, rather discouraging luxury than loading industry with unneces- 
sary burdens." (Franklin's Plan of 1754.) 

"And in order to raise moneys sufficient for these pur- 
poses : 

' ' That the said president and council be empowered to lay 
general duty on wines and spirituous liquors or other luxurious 
consumptions as shall appear to them just and equal on the 
several colonies, each colony to pay in proportion to their mem- 
bers ; and if it shall appear that the sum raised by any colony fall 
short of such proportion and the deficiency shall not forthwith be 
paid by such colony, then and as oft as it shall so happen the 
said president and council shall have power to lay additional duty 
on such colony until the deficiency be made good ; and if the sum 
raised from any colony shall exceed its proportion, the surplus 
shall remain or be paid into the general treasury of such colony. 
And the accounts of the deposition of all moneys raised shall be 
annually settled, that the members of the council may make 
report of the same to the respective assemblies. 

"That the president and council shall appoint officers for col- 
lecting all such duties as shall be agreed on, and all laws and 
orders for enforcing the payment thereof in any and every colony, 
and also all laws and orders for restraining supplies to, and com- 
munication with, his Majesty's enemies, whether by flags of 
truce or in any other manner, shall be as fully and effectively 
observed and executed as if they had been the laws of that par- 
ticular colony where any offence shall be committed, and all 
offences against such laws and orders shall be tried and deter- 
mined accordingly." (Hutchinson's Plan, 1754.) 

"All charges of wars, and all other general expenses to be 
incurred for the common welfare, shall be defrayed out of a com- 
mon treasury, which is to be supplied by each colony in propor- 
tion to its number of male polls between sixteen and sixty years 

288 



Federalism in Detail 

of age. The taxes for paying that proportion are to be laid and 
levied by the laws of each colony. ' ' (Franklin' s Articles of Con- 
federation, 1775.) 

"All charges of war, and all other expenses that shall be 
incurred for the common defence or general welfare and allowed 
by the United States, in congress assembled, shall be defrayed 
out of a common treasury, which shall be supplied by the several 
states, in proportion to the value of all land within each state, 
granted to, or surveyed for, any person, as such land and the 
buildings and improvements thereon shall be estimated, accord- 
ing to such mode as the United States, in congress assembled, 
shall from time to time direct and appoint. The taxes for paying 
that proportion shall be laid and levied by the authority and direc- 
tion of the legislatures of the several states, within the time agreed 
upon by the United States, in congress assembled. ' ' (Articles of 
Confederation, 1778.) 

* ' The congress shall have the sole power of rating and causing 
taxes to be levied throughout the United States for the service of 
the confederacy." (Drayton's Articles of Confederation, 1778.) 

' ' The legislature of the United States shall have power to lay 
and collect taxes, duties, imposts, and excises." (Pinckney's 
Plan, 1787.) 

" The proportion of direct taxation shall be regulated by the 
whole number of inhabitants of every description, which number 
shall, within years after the first meeting of the legislature 

and within the term of every year after, be taken in the 

manner to be prescribed by the legislature. 

' • No tax shall be laid on articles exported from the states ; nor 
capitation tax, but in proportion to the census before directed." 
(Pinckney's Plan, 1787.) 

' ' The congress shall have power to lay and collect taxes, 
duties, imposts, and excises, to pay the debts and provide for the 
common defence and general welfare of the United States ; but all 
duties, imposts, and excises shall be uniform throughout the 
United States. No capitation or other direct tax shall be laid 
unless in proportion to the census or enumeration hereinbefore 
directed to be taken." (The Constitution.) 
19 2S9 



Evolution of the Constitution 

10. Intercourse between the States. 

"It is also agreed that the commissioners for this confedera- 
tion hereafter at their meetings, whether ordinary or extraordi- 
nary, as they may have commission or opportunity, do endeavor 
to frame and estabHsh agreements and orders in general cases of 
a civil nature wherein all the plantations are interested for pre- 
serving peace among themselves, and preventing as much as 
may be all occasions of war or difference with others, as about 
the free and speedy passage of justice in every jurisdiction to all 
the confederates equally as their own, receiving those that re- 
move from one plantation to another without due certificates ; 
how all the jurisdictions may carry it towards the Indians, that 
they neither grow insolent nor be injured without due satisfaction, 
lest war break in upon the confederates through such miscarriage. 
It is also agreed that if any servant run away from his master into 
any other of these confederated jurisdictions, that, in such case, 
upon the certificate of one magistrate in the jurisdiction out of 
which the said servant fled, or upon other due proof, the said 
servant shall be delivered either to his master or any other that 
pursues and brings such certificate or proof. And that upon the 
escape of any prisoner whatsoever or fugitive for any criminal 
cause, whether breaking prison or getting from the officer or 
otherwise escaping, upon the certificate of two magistrates of the 
jurisdiction out of which the escape is made that he was a pris- 
oner or such an offender at the time of the escape, the magis- 
trates, or some of them of that jurisdiction where for the present 
the said prisoner or fugitive abideth, shall forthwith grant such a 
warrant as the case will bear for the apprehending of any such 
person, and the delivery of him into the hands of the officer or 
other person that pursues him. And if there be help required for 
the safe returning of such offender, then it shall be granted to 
him that craves the same, he paying the charges thereof. ' ' (New 
England Union of 1643.) 

"That their business shall be to hear and adjust all matters 
of complaint or differences between province and province, — as, 
1st, where persons quit their own province and go to another that 

290 



Federalism in Detail 

they may avoid their just debts, though they be able to pay them ; 
2d, where offenders fly justice or justice cannot well be had upon 
such offenders in the provinces that entertain them." (Penn's 
Plan of Union, 1696.) 

* * The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different states in this union, 
the free inhabitants of each of these states, paupers, vagabonds, 
and fugitives from justice excepted, shall be entitled to all privi- 
leges and immunities of free citizens in the several states ; and 
the people of each state shall have free ingress and regress to 
and from any other state, and shall enjoy therein all the privi- 
leges of trade and commerce, subject to the same duties, impo- 
sitions, and restrictions as the inhabitants thereof respectively ; 
provided that such restrictions shall not extend so far as to pre- 
vent the removal of property imported into any state to any 
other state, of which the owner is an inhabitant ; provided, also, 
that no imposition, duties, or restriction shall be laid by any state 
on the property of the United States, or either of them. 

" If any person guilty of, or charged with, treason, felony, or 
other high misdemeanor in any state shall flee from justice and 
be found in any of the United States, he shall, upon demand of 
the governor or executive power of the state from which he fled, 
be delivered up, and removed to the state having jurisdiction of 
his offence. 

"Full faith and credit shall be given, in each of these states, 
to the records, acts, and judicial proceedings of the courts and 
magistrates of every other state." (Articles of Confederation, 
1778.) 

"There shall be a mutual friendship and intercourse among 
the people of the several states in this union ; the free white in- 
habitants of each of these states (those who refuse to take up 
arms in defence of the confederacy, paupers, vagabonds, and 
fugitives from justice excepted) shall be entitled to all privileges 
and immunities of free citizens in the several states, according to 
the laws of such state respectively, for the government of their 
own free white inhabitants, having uninterrupted ingress and re- 
gress, together with their property, to and from any other of the; 

291 



Evolution of the Constitution 

United States, subject, nevertheless, to the duties, impositions, 
and restrictions as the inhabitants thereof respectively. 

" If any person charged with, or guilty of, treason, felony, or 
other high misdemeanors, in any of the respective states, shall 
flee from justice, and be found in any of the states, upon the de- 
mand of the executive power in the state from which he fled, he 
shall be delivered up and removed to the state having jurisdic- 
tion of the offence, that state defraying the expense of the re- 
moval. And full faith and credit shall be given throughout the 
United States to the acts, records, and judicial proceedings of the 
courts and magistrates in each." (Drayton's Articles of Con- 
federation, 1778.) 

" The citizens of each state shall be entitled to all privileges and 
immunities of citizens in the several states. Any person, charged 
with crimes in any state, fleeing from justice to another, shall, on 
demand of the executive of the state from which he fled, be delivered 
up and removed to the state having jurisdiction of the offence. 

" Full faith shall be given, in each state, to the acts of the 
legislature, and to the records and judicial proceedings of the 
courts and magistrates of every state." (Pinckney's Plan, 1787.) 

' ' Full faith and credit shall be given in each state to the pub- 
lic acts, records, and judicial proceedings of every other state. 
And the congress may, by general laws, prescribe the manner 
in which such acts, records, and proceedings shall be proved, 
and the effect thereof. 

' ' The citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states. 

* ' A person charged in any state with treason, felony, or other 
crime, who shall flee from justice, and be found in another state, 
shall, on demand of the executive authority of the state from 
which he fled, be delivered up, to be removed to the state having 
jurisdiction of the crime. 

*'No person held to service or labor in one state, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the party to whom 
such service or labor may be due." (The Constitution.) 

292 



Federalism In Detail 

II. Regulation of Commerce. 

'*3rd, to prevent injuries in point of commerce." (Penn's 
Plan of Union, 1696.) 

"That the president-general, with the advice of the grand 
council, make such laws as they judge necessary for regulating 
all Indian trade." (Franklin's Plan of 1754.) 

"The president, by the advice of the council, shall have the 
sole power of restraining and regulating all Indian trade by laws 
and orders, with penalties annexed not extending to life and limb ; 
all offences against such laws or orders to be tried and deter- 
mined ^vithin the government where the offence shall be com- 
mitted, according to the course of judicial proceeding in such 
government, in like manner as if such offence had been com- 
mitted against the laws of such colony, and any offence that may 
be committed in any parts that shall not be within the certain 
bounds of any colony shall and may be tried and determined in 
the colony where the offender shaU be taken." (Hutchinson's 
Plan, 1754.) 

"The congress shall also make such general ordinances as 
may relate to our general commerce." (Franklin's Articles of 
Confederation, 1775.) 

' * The United States, in congress assembled, shall also have 
the sole and exclusive right and power of regulating the trade 
and managing all affairs with the Indians not members of any 
of the states ; provided that the legislative right of any state, 
within its own limits, be not infringed or violated." (Articles of 
Confederation, 1778.) 

"The congress shall have the sole power of regulating the 
affairs and trade of the Indians not members of any state." 
(Drayton's Articles of Confederation, 1778.) 

" The legislature of the United States shall have the power to 
regulate commerce with all nations and among the several states." 
(Pinckney's Plan, 1787.) 

"The congress shall have power to regulate commerce with 
foreign nations and among the several states and with the Indian 
tribes." (The Constitution.) 

293 



Evolution of the Constitution 

12. Sending and Receiving Ambassadors. 

"That the power and duty of congress shall extend to the 
sending and receiving ambassadors." (Franklin's Articles of 
Confederation, 1775.) 

"The United States, in congress assembled, shall have the 
sole and exclusive right and power of sending and receiving am- 
bassadors." (Articles of Confederation, 1778.) 

• ' The congress shall have sole power of sending ambassadors 
to, and receiving therefrom, foreign princes and states." (Dray- 
ton's Articles of Confederation, 1778.) 

* ' The senate shall have the sole and exclusive power to ap- 
point ambassadors and other ministers to foreign nations. 

" He [the President] shall receive pubhc ministers from foreign 
nations, and may correspond with the executives of the different 
states." (Pinckney's Plan, 1787.) 

" He [the President] shall nominate, and, by and with the 
advice of the senate, shall appoint ambassadors and other pubUc 
ministers. 

•• He shall receive ambassadors and other pubhc ministers." 
(The Constitution.) 

13. Captures. 

"The United States, in congress assembled, shall have the 
sole and exclusive right and power of estabhshing rules for de- 
ciding in all cases what captures on land or water shall be legal, 
and in what manner prizes taken by land or naval forces in the 
service of the United States shall be divided or appropriated." 
(Articles of Confederation, 1778.) 

"The congress shall have the sole power of declaring what 
captures on land and on water shall be legal, and in what manner 
such captures, by the land and naval forces in the service of the 
United States, shall be divided and appropriated." (Drayton's 
Articles of Confederation, 1778.) 

' ' The legislature of the United States shall have the power to 
make rules concerning captures from an enemy." (Pinckney's 
Plan, 1787.) 

294 



Federalism in Detail 

"The congress shall have power to make rules concerning 
captures on land and water." (The Constitution.) 

14. The Judiciary. 
The New England union of 1643 contemplated 
nothing more than a legislative department, which was 
to exercise all the powers of the Union. Penn's plan 
of 1696 added an executive, and subsequent plans 
down to the time of the Revolution were usually based 
on those two departments, which, however, were not 
always entirely distinct from each other. A judicial 
department was never mentioned, because the plans and 
the situation were not sufficiently complex to require 
the function of regularly organized government. It was 
not until the time of the Articles of Confederation of 
1778 that the judicial power was cautiously introduced, 
and confined at first to piracies and felonies on the 
high seas and cases of capture. 

"The United States, in congress assembled, shall have the 
sole and exclusive right and power of appointing courts for the 
trial of piracies and felonies committed on the high seas ; [and] 
courts for receiving and determining finally appeals in all cases 
of captures." (Articles of Confederation, 1778.) 

"The congress shall have the sole power of appointing courts 
in the several United States for trial of piracies committed on the 
high seas, and for deciding finally appeals in all cases of capture 
arising in such states respectively. ' ' (Drayton' s Articles of Con- 
federation, 1778.) 

" That a national judiciary be established ; to consist of one or 
more supreme tribunals and of inferior tribunals ; to be chosen 
by the national legislature ; to hold their offices during good be- 
havior, and to receive punctually, at stated times, fixed compen- 
sation for their services, in which no increase or diminution shall 

295 



Evolution of the Constitution 

be made so as to affect the persons actually in office at the time 
of such increase or diminution. That the jurisdiction of the 
inferior tribunals shall be to hear and determine, in the first 
instance, and of the supreme tribunal to hear and determine, in 
the dernier ressort, all piracies and felonies on the high seas ; cap- 
tures from an enemy ; cases in which foreigners, or citizens of 
other states, applying to such jurisdictions, may be interested ; or 
which respect the collection of the national revenue, impeach- 
ments of any national officers, and questions which may involve 
the national peace and harmony." (Randolph's Plan, 1787.) 

' ' The legislature of the United States shall have the power to 
constitute tribunals inferior to the supreme court. 

*• The legislature of the United States shall have the power, 
and it shall be their duty, to establish such courts of law, equity, 
and admiralty as shall be necessary. 

" The judges of the courts shall hold their offices during good 
behavior and receive a compensation which shall not be increased 
or diminished during their continuance in office. One of these 
courts shall be termed the supreme court, whose jurisdiction shall 
extend to all cases arising under the laws of the United States, or 
affecting ambassadors, other public ministers, and consuls ; to the 
trial or impeachment of officers of the United States ; to all cases 
of admiralty and maritime jurisdiction. In cases of impeachment 
affecting ambassadors and other public ministers this jurisdiction 
shall be original and in all other cases appellate." (Pinckney's 
Plan, 1787.) 

' ' The congress shall have power to constitute tribunals inferior 
to the supreme court. 

"The judicial power of the United States shall be vested in 
one supreme court and in such inferior courts as the congress 
may from time to time ordain and establish. The judges, both 
of the supreme and inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, receive for their ser- 
vices a compensation which shall not be diminished during their 
continuance in office. 

" The judicial power shall extend to all cases in law and equity 
arising under this constitution, the laws of the United States and 

296 



Federalism in Detail 

treaties made, or which shall be made, under their authority ; 
to all cases affecting ambassadors, other public ministers, and 
consuls ; to all cases of admiralty and maritime jurisdiction ; to 
controversies to which the United States shall be a party ; to 
controversies between two or more states ; between a state and 
citizens of another state ; between citizens of different states ; 
between citizens of the same state claiming lands under grants of 
different states ; and between a state, or the citizens thereof, and 
foreign states, citizens, or subjects. 

' ' In all cases affecting ambassadors, other public ministers, 
and consuls, and those in which a state shall be a party, the 
supreme court shall have original jurisdiction. In all the other 
cases before mentioned the supreme court shall have appellate 
jurisdiction, both as to law and fact, with such exceptions and 
under such regulations as the congress shall make." (The Con- 
stitution.) 

" The judicial power of the United States shall not be construed 
to extend to any suit in law or equity commenced or prosecuted 
against one of the United States by citizens of another state, or by 
citizens or subjects of any foreign state." (Eleventh Amendment 
to the Constitution.) 

15. Power to Borrow Money. 

"The United States, in congress assembled, shall have au- 
thority to borrow money or emit bills on the credit of the United 
States, transmitting every half year to the respective states an 
account of the sums of money so borrowed or emitted." (Arti- 
cles of Confederation, 1778.) 

" The congress shall have the sole power of emitting and bor- 
rowing money upon the credit of the United States, from time to 
time, not exceeding the sum ascertained as necessary to be raised 
for the service of the confederacy, transmitting to the several 
states, half yearly, an account of the sums of money so emitted 
and borrowed, applying the said sums of money ascertained to be 
raised, and allowed to be emitted and borrowed, for defraying the 
public expense." (Drayton's Articles of Confederation, 1778.) 

297 



Evolution of the Constitution 

' ' The legislature of the United States shall have the power to 
borrow money and emit bills of credit." (Pinckney's Plan, 

1787.) 

' ' The congress shall have power to borrow money on the 
credit of the United States." (The Constitution.) 

16. Regulation of the Value of Money. 

' ' And, lastly, whether considering the trouble and confusion 
attending the endless diversity of money, it would not be best, 
by an act of the legislature at home, to establish one medium to 
obtain in the colonies," (Dr. Johnson's Plan of 1660.) 

"The congress shall also make such general ordinances as 
relate to our general currency." (Franklin's Articles of Confed- 
eration, 1775.) 

"The United States, in congress assembled, shall also have 
the sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the re- 
spective states." (Articles of Confederation, 1778.) 

"The congress shall have the sole power of regulating the 
alloy and value of coin struck by their authority." (Drayton's 
Articles of Confederation, 1778.) 

' ' The legislature of the United States shall have the power to 
coin money and regulate the value of all coins, [and] to declare 
the law and punishment of counterfeiting coin." (Pinckney's 
Plan of 1787.) 

"The congress shall have power to coin money, regulate the 
value thereof and of foreign coin, [and] to provide the punish- 
ment of counterfeiting the securities and current coin of the 
United States." (The Constitution.) 

17. Standard of Weights and Measures. 

"The United States, in congress assembled, shall also have 
the sole and exclusive right and power of fixing the standard of 
weights and measures." (Articles of Confederation, 1778.) 

" The legislature of the United States shall have the power to 

298 



Federalism in Detail 

fix the standard of weights and measures." (Pinckney's Plan, 

1787.) 

' ' The congress shall have power to fix the standard of weights 
and measures." (The Constitution.) 

18. Army. 

An army is an essential part of a federal government 
if the federalism is to endure. In fact, the earliest 
forms of federalism had in view an army as their prin- 
cipal object. The New England union of 1643 was 
established almost for the sole purpose of raising an 
army to protect the provinces that were associated in 
the union. 

At the same time there is the danger that the army 
may become so large as to be a menace to liberty, or 
that it may be used to coerce some one or more of the 
States for the benefit of the others. To guard against 
this, the early plans of union usually left much of the 
control to the individual provinces, each of which was 
to furnish its quota of men and no more, appoint the 
officers, and furnish arms and equipments, while ammu- 
nition, food, and general expenses were to be provided 
by the union. As federalism developed, and less and 
less was left to the individual States, the control of the 
army was placed in the Congress, or whatever body most 
fully represented the people, who have always proved 
to be very jealous of standing armies, and, in this re- 
spect, most careful guardians of their liberty. 

" It is further agreed that if any one of these jurisdictions, or 
any plantations under it, or in any combination with them be 
invaded by any enemy whomsoever, upon notice and request of 
any three magistrates of that jurisdiction so invaded, the rest of 

299 



Evolution of the Constitution 

the confederates, without any further meeting or expostulation, 
shall forthwith send aid to the confederate in danger, but in differ- 
ent proportions, — namely, the Massachusetts an hundred men 
sufficiently armed and provided for such a service and journey, 
and each of the rest forty-five so armed and provided, or any less 
number, if less be required, according to this proportion. But 
if such confederate in danger may be supplied by their next con- 
federate not exceeding the number hereby agreed, they may 
crave help there, and seek no further for the present. The 
charge to be borne as in this article is expressed, and, at the 
return, to be victualled and supplied with powder and shot for 
their journey (if there be need) by that jurisdiction which em- 
ployed or sent for them ; but none of these jurisdictions to exceed 
these numbers till by a meeting of the commissioners for this 
confederation a greater aid appear necessary. And this propor- 
tion to continue till, upon knowledge of greater numbers in each 
jurisdiction which shall be brought to the next meeting, some 
other proportion be ordered. But in any such case of sending 
men for present aid, whether before or after such order or altera- 
tion, it is agreed that at the meeting of the commissioners for 
this confederation the cause of such war or invasion be duly con- 
sidered, and, if it appear that the fault lay in the parties so 
invaded, that then that jurisdiction or plantation make just satis- 
faction, both to the invaders whom they have injured, and bear 
all the charges of the war themselves without requiring any 
allowance from the rest of the confederates towards the same. 
And further, that if any jurisdiction see any danger of any inva- 
sion approaching, and there be time for a meeting, that in such 
case three magistrates of that j urisdiction may summon a meeting 
at such convenient place as themselves shall think meet, to con- 
sider and provide against the threatened danger, provided when 
they are met they may remove to what place they please, only 
whilst any of these four confederates have but three magistrates 
in their jurisdiction, their request or summons from any two of 
them shall be accounted of equal force with the three mentioned 
in both the clauses of this article till there be an increase of magis- 
trates there." (New England Union, 1643.) 

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Federalism in Detail 

[The Congress] " to consider of ways and means to support 
the union and safety of these provinces against the public ene- 
mies." (Penn's Plan of Union, 1696.) 

' ' That there be a reasonable sum raised and paid every year 
from each province for erecting forts, where proper, and repairing 
the old ; and for providing the said forts with arms and ammuni- 
tion, etc., the better to enable the provinces to extend their terri- 
tories backward. 

' ' That the standing military forces that shall be thought need- 
ful for the defence of all the provinces be on any vacancies filled 
up by the said captain-general, to be confirmed by his Majesty's 
commission. 

"That the said captain-general have power to remove any 
officer in the militia of any province when under his command 
upon service, but to fill up the vacancies with persons only of the 
province to which the said militia belonged. 

' ' That the captain-general have power to order and march the 
militia of any province to the defence of another (this article to be 
settled under reasonable rules, allowances, and restrictions)." 
(Lord Stair's Plan, 1721.) 

"That they [the grand council] raise and pay soldiers and 
build forts for the defence of any of the colonies." (Franklin's 
Plan of 1754.) 

' • That one company, consisting of one hundred men complete, 
exclusive of ofificers, shall be raised by every province, and a 
regiment formed of the thirteen companies to be called the union 
regiment, to be commanded by one colonel, lieutenant-colonel, 
and major, to be appointed by the king. 

"That this little standing army shall assist in making roads, 
building forts, or any other necessary work." (Peters' s Plan, 

1754.) 

' ' That the president and council shall have power to raise and 
pay soldiers and build forts for the defence of any of the colo- 
nies, and for removing all encroachments upon his Majesty's 
territories, and for the annoyance of his Majesty's enemies." 
(Hutchinson's Plan, 1754.) 

' ' The congress shall also make such general ordinances as 

:;oi 



Evolution of the Constitution 

may relate to the establishment of posts and the regulation of our 
common forces." (Franklin's Articles of Confederation, 1775.) 

"The United States, in congress assembled, shall also have 
the sole and exclusive right and power of making rules for the 
government and regulation of the said land and naval forces, and 
directing their operations. 

"The United States, in congress assembled, shall have au- 
thority to agree upon the number of land forces, and to make 
requisitions from each state for its quota in proportion to the 
number of white inhabitants in such state, which requisition shall 
be binding ; and thereupon the legislature of each state shall ap- 
point the regimental officers, raise the men, and clothe, arm, and 
equip them, in a soldier-like manner, at the expense of the United 
States ; and the officers and men so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed 
on by the United States in congress assembled. But if the United 
States, in congress assembled, shall, on consideration of circum- 
stances, judge proper that any state should not raise men, or 
should raise a smaller number than its quota, and that any other 
state should raise a greater number of men than the quota thereof, 
such extra number shall be raised, officered, clothed, armed, and 
equipped in the same manner as the quota of such state, unless 
the legislature of such state shall judge that such extra number 
cannot be safely spared out of the same ; in which case they shall 
raise, officer, clothe, arm, and equip as many of such extra num- 
ber as they judge can be safely spared ; and the officers and men 
so clothed, armed, and equipped shall march to the place ap- 
pointed, and within the time agreed on by the United States in 
congress assembled." (Articles of Confederation, 1778.) 

"The congress shall have the sole power of ascertaining the 
military land quota of each state in proportion to the number of 
white inhabitants therein respectively ; making rules for the gov- 
ernment of the said military quotas, — directing, ordering, and 
commanding the said military quotas, generalissimo, major-gen- 
erals, principal staff officer, subordinate officers, war office, in all 
their operations and proceedings ; collecting military stores and 
provisions, and issuing them for the service of the United States. 

302 



Federalism in Detail 

" The military land quota of each of the United States shall 
be in proportion to the number of white inhabitants in each. The 
several states shall, in due time, embody the several military 
quotas required by the congress, and shall raise, clothe, arm, and 
maintain them at the general expense rated by the congress. 
The several states shall appoint all the regimental and deputy 
staff officers incidental to their quotas ; and into as many brigades 
as the congress shall brigade their respective quotas, so many 
brigadier-generals shall such respective state nominate,— the 
whole to be commissioned by the congress. All vacancies in a 
quota shall be supplied by its state. The executive power in 
each state, except that in which the congress be sitting, shall, 
under the authority and control of the congress, direct the land 
forces, ships, and vessels of war, and all officers incidental 
thereto, in the service of the United States within such state. 
The proportionate pecuniary quotas of the several states shall 
be regulated in proportion to the number of inhabitants in 
each state respectively. Whenever such pecuniary quotas for 
the service of the United States shall be required by congress 
they shall state the capitation rate. Each state shall then ap- 
point persons to number its whole inhabitants, according to the 
mode stated, to ascertain the number of white inhabitants in each 
state ; such persons being also caused to specify the number of 
white, mustizo, mulatto, and negro inhabitants respectively. 
Such a numeration being duly returned, the legislature in each 
state shall levy the sum of money to arise therefrom in such mode 
as they shall deem expedient ; and a true copy of the said return 
shall, without loss of time, be sent to congress. The several 
states shall duly pay their pecuniary quotas into the treasury office 
of America by the time mentioned by the congress for such pay- 
ment, unless to the contrary directed for the good of the public 
service ; in which case, such state so directed shall, within twelve 
months, duly account with the said treasury office for the pecu- 
niary quota, or part thereof so directed to be retained. ' ' (Dray- 
ton's Articles of Confederation, 1778.) 

" The legislature of the United States shall have power to raise 
armies ; to pass laws for arming, organizing, and disciplining the 

303 



Evolution of the Constitution 

militia of the United States ; to provide such arsenals and erect 
such fortifications as may be necessary for the United States, and 
to exercise exclusive jurisdiction therein ; to establish military 
roads." (Pinckney's Plan, 1787.) 

' ' The congress shall have power to raise and support armies, 
but no appropriation of money to that use shall be for a longer 
term than two years. 

' * To make rules for the government and regulation of the land 
and naval forces. 

' ' To provide for calling forth the militia to execute the laws 
of the union, suppress insurrections, and repel invasions. 

' • To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the states re- 
spectively the appointment of the officers and the authority of 
training the militia according to the discipline prescribed by con- 
gress. 

"And to exercise like authority [i.e., exclusive authority] over 
all places purchased by the consent of the legislature of the state 
in which the same shall be for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings." (The Con- 
stitution.) 

19. Navy. 

"That, until the said provinces shall be enabled thereto, his 
Majesty would allow eight or ten small men-of-war constantly to 
attend this general government and to protect the trade ; which 
ships to be under the command and direction of the said captain- 
general, and to be paid their wages by the joint government of 
the whole continent so soon as the ability of this new general 
government can allow of." (Lord Stair's Plan, 1721.) 

"That the president-general, with the advice of the grand 
council, equip vessels of force to guard the coasts and protect the 
trade on the ocean, lakes, or great rivers." (FrankUn's Plan of 

1754.) 

' ' The United States, in congress assembled, shall also have 
the sole and exclusive right and power of making rules for the 

304 



Federalism in Detail 

government and regulation of the said land and naval forces and 
directing their operation. 

" The United States, in congress assembled, shall have author- 
ity to build and equip a navy." (Articles of Confederation, 1778.) 

"The congress shall have the sole power of building, pur- 
chasing, and equipping a naval force in the service of the United 
States of America ; making rules for the government of the said 
naval force, admiralty office ; directing, ordering, and command- 
ing the said naval force, admiralissimo, subordinate officers, 
naval office in all their operations and proceedings. Each state 
shall, within five years, establish a foundation for a naval semi- 
nary, making suitable provision for the constant maintenance, 
education, and fitting for sea five youths for every thousand 
white inhabitants within such state. ' ' (Drayton' s Articles of Con- 
federation, 1778.) 

"The legislature of the United States shall have the power to 
build and equip fleets ; to provide such dock -yards as may be 
necessary for the United States, and to exercise exclusive jurisdic- 
tion therein." (Pinckney's Plan, 1787.) 

"The congress shall have power to provide and maintain a 
navy. 

"And to exercise like authority [i.e., exclusive authority] over 
all places purchased by the consent of the legislature of the state 
in which the same shall be, for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings." (The Con- 
stitution.) 

20. Controversies between States. 

' ' That the power and duty of congress shall extend to the 
settling all disputes and differences between colony and colony 
about limits or any other cause." (Franklin's Articles of Con- 
federation, 1775.) 

" The United States, in congress assembled, shall also be the 
last resort on appeal in all disputes and differences now subsist- 
ing, or that hereafter may arise, between two or more states con- 
cerning boundary, jurisdiction, or any other cause whatever." 
(Articles of Confederation, 1778.) 

20 305 



Evolution of the Constitution 

* ' The congress shall have the sole power of being the dernier 
ressort on appeal in all cases of dispute between any two or more 
of the United States." (Drayton's Articles of Confederation, 

1778.) 

"They [the senate] shall have the exclusive power to regu- 
late the manner of deciding all disputes and controversies now 
existing, or which may arise, between the states, respecting 
jurisdiction or territory." (Pinckney's Plan, 1787.) 

" The judicial power shall extend to controversies between 
two or more states." (The Constitution.) 

21. Treaty-making Power. 

" That the president-general, with the advice of the grand 
council, hold or direct all Indian treaties in which the general 
interest or welfare of the colonies may be concerned." (Frank- 
lin's Plan of 1754.) 

' ' That the president, by the advice of the cotmcil, may hold 
and manage all Indian treaties in which the general interest or 
welfare of the colonies may be concerned." (Hutchinson's Plan, 

1754.) 

' ' That the power and duty of congress shall extend to enter- 
ing into alliances." (Franklin's Articles of Confederation, 1775.) 

' ' That the president and commander-in-chief shall have no 
power to make war or peace, or enter into any final treaty, with- 
out the consent of the general assembly and legislative council. ' ' 
(South Carolina Constitution of 1776.) 

' • The United States, in congress assembled, shall have the 
sole and exclusive right and power of entering into treaties and 
alliances, provided that no treaty of commerce shall be made 
whereby the legislative power of the respective states shall be 
restrained from imposing such imposts and duties on foreigners 
as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or commodities 
whatsoever." (Articles of Confederation, 1778.) 

' ' The congress shall have the sole power of entering into and 
Concluding treaties and alliances with foreign powers." (Dray- 
ton's Articles of Confederation, 1778.). 

306 



Federalism in Detail 

' ' The senate shall have the sole and exclusive power to make 
treaties." (Pinckney's Plan, 1787.) 

" He [the President] shall have power, by and with the advice 
and consent of the senate, to make treaties, provided two-thirds 
of the senators present concur." (The Constitution.) 

22. Money not to Issue from Treasury except by 

Law. 

"Yet no money to issue but by joint orders of the president- 
general and grand council, except where sums have been appro- 
priated to particular purposes and the president-general is pre- 
viously empowered by an act to draw for such sums. ' * (Franklin' s 
Plan of 1754.) 

' ' But no money shall issue out of any treasury without the 
special order of the president, by the advice of the council, ex- 
cept where sums have been appropriated to particular purposes, 
and the president shall be specially empowered to draw for such 
sums." (Hutchinson's Plan, 1754.) 

' ' No moneys shall be issued out of the treasury of this com- 
monwealth and disposed of (except such sums as may be appro- 
priated for the redemption of bills of credit or treasurer's notes, 
or for the payment of interest arising thereon), but by warrant 
under the hand of the governor for the time being, with the ad- 
vice and consent of the council for the necessary defence and 
support of the commonwealth, and for the protection and preser- 
vation of the inhabitants thereof, agreeably to the acts and re- 
solves of the general court." (Massachusetts Constitution of 
1780.) 

The above provision from the Massachusetts constitution of 
1780 is repeated in the New Hampshire constitution of 1784. 

' ' No money shall be drawn from the treasury but in conse- 
quence of appropriations made by law." (The Constitution.) 

23. Post-Office. 

"That there be a post established to pass once a week, at 
least, through all the provinces from the southernmost settlement 

307 



Evolution of the Constitution 

to the most northerly, that is possible, with orders to send intelli- 
gences ; and that every governor may correspond with the gen- 
eral on all occasions." (Lord Stair's Plan, 1721.) 

' ' The United States, in congress assembled, shall also have 
the sole and exclusive right and power of establishing and regu- 
lating post-offices from one state to another throughout all the 
United States, and exacting such postage on the papers passing 
through the same as may be requisite to defray the expenses of 
the said office." (Articles of Confederation, 1778.) 

' ' The congress shall have the sole power of establishing and 
regulating post-offices throughout the United States, exacting such 
postage as may be necessary to defray the expense of the said 
offices, or any part thereof." (Drayton's Articles of Confedera- 
tion, 1778.) 

' ' The legislature of the United States shall have the power 
to estabUsh post-offices ; to establish post-roads. ' ' (Pinckney's 
Plan, 1787.) 

" The congress shall have power to establish post-offices and 
post-roads." (The Constitution.) 

24. Treason. 

"The congress shall have power to declare what shall be 
deemed treason against the United States of America, and in 
what manner such treason shall be punished." (Drayton's Arti- 
cles of Confederation, 1778.) 

' ' The legislature of the United States shall have the power to 
declare the punishment of treason, which shall consist only in 
levying war against the United States, or any of them, or in ad- 
hering to their enemies. No person shall be convicted of treason 
but by the testimony of two witnesses." (Pinckney's Plan, 1787.) 

' ' Treason against the United States shall consist only in levy- 
ing war against them, or in adhering to their enemies, giving 
them aid and comfort. No person shall be convicted of treason 
unless on the testimony of two witnesses to the same overt act, 
or on confession in open court. 

' • The congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of 

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Federalism in Detail 

blood, or forfeiture, except during the life of the person attainted." 
(The Constitution.) 

25. Letters of Marque. 

"The United States, in congress assembled, shall have the 
sole and exclusive power of granting letters of marque and re- 
prisal in times of peace." (Articles of Confederation, 1778.) 

' ' The congress shall have the sole power of granting letters 
of marque and reprisal." (Drayton's Articles of Confederation, 
1778.) 

' ' The congress shall have power to grant letters of marque 
and reprisal." (The Constitution.) 

26. Nationality. 

' ' The right of making laws for the United States should be 
vested in all their inhabitants. 

" In all the affairs that respect the whole, congress must have 
the same power to enact laws and compel obedience throughout 
the continent as the legislatures of the respective states have in 
their several jurisdictions. If congress have any power, they 
must have the whole power of the continent. 

" Let every state reserve its sovereign right of directing its own 
internal affairs ; but give to congress the sole right of conducting 
the general affairs of the continent. ' ' (Noah Webster' s ' ' Sketches 
of American Policy," 1785.) 

"We, the people of the states of New Hampshire, Massachu- 
setts, Rhode Island and Providence Plantations, Connecticut, 
New York, New Jersey, Pennsylvania, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, and Georgia, do ordain, 
declare, and establish the following Constitution for the govern- 
ment of ourselves and posterity." (Pinckney's Plan, 1787.) 

' ' We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States of 
America." (The Constitution.) 

309 



CHAPTER VIII. 

CLAUSES OF THE CONSTITUTION WHICH WERE OF SHORT 

DEVELOPMENT. 

In the course of the evolution which has been traced 
in the preceding chapters it is noticeable that almost 
every document contained a few points that were new, 
and in this way the development progressed. Almost 
every colony, State, or person that was considered con- 
tributed its share, and it would be extremely difficult 
to decide what place or what person did the most. 
When the Constitution had absorbed all this develop- 
ment, it also, like its predecessors, added some new 
provisions which were suggested by circumstances, and 
these are the only parts of the Constitution which can 
be said to have been '* struck off at a given time." 

They were not, however, imitations of anything in 
Europe. Most of them were very simple and necessary 
provisions, which speak for themselves : 

1. The debts contracted by the government under the Articles 
of Confederation to be valid against the government under the 
Constitution. 

2. Congress to have exclusive jurisdiction over such district 
(not exceeding ten miles square) as should become the seat of 
government. 

3. The United States to protect each state from invasion, and 
also from domestic violence, on application of the legislature of 
the state, or, if it is not in session, on application of the gov- 
ernor. 

310 



Clauses of Short Development 

4. The ratification by the conventions of nine states to be suf- 
ficient to establish the Constitution between the states so ratifying. 

5. The United States to guarantee to every state a repubhcan 
form of government. 

6. The times, places, and manner of holding elections for 
senators and representatives to be prescribed in each state by the 
legislature thereof ; but the congress may, at any time, by law, 
make or alter such regulations, except as to the places of choosing 
senators. 

7. The President may require the opinion, in writing, of the 
principal officer in each of the executive departments, upon any 
subject relating to the duties of their respective offices. 

8. The congress to have power to establish uniform laws on 
the subject of bankruptcies. 

9. No senator or representative to hold any office which shall 
have been created or the emoluments thereof increased during 
the time for which he was elected. 

10. The importation of slaves not to be prohibited prior to the 
year 1808, but a tax on such importation not exceeding ten dol- 
lars for each person may be imposed. 

1 1 . New states to be admitted into the Union by congress. 

12. The congress to have power to dispose of and make rules 
and regulations for the territory or other property of the United 
States. 

13. No tax or duty to be laid on articles exported from any 
state. No preference to be given by any regulation of commerce 
or revenue to the ports of one state over those of another. Ves- 
sels bound to or from one state not to be obliged to enter, clear, 
or pay duties in another. 

Among the amendments, the ninth, which says that 
the enumeration of certain rights shall not be construed 
to disparage others retained by the people, and the 
tenth, which says that the powers not delegated to the 
United States nor prohibited to the States are reserved 
to the States or to the people, were the result of the 

3" 



Evolution of the Constitution 

agitation of the State-rights party, and were adopted 
immediately after the Constitution went into effect. 
The eleventh amendment, which prohibits the extension 
of the judicial power to any suit against any one of the 
States by citizens of another or by citizens of a foreign 
state, was also the result of the same agitation. 

There were also two parts of the fifth amendment 
which are not to be found in previous American consti- 
tutions, — the guarantee that no person shall be held to 
answer for a capital or infamous crime except on in- 
dictment of a grand jury, and the guarantee that no per- 
son shall be deprived of life, liberty, or property without 
due process of law. These were old principles well 
known for centuries among the English race, and they 
had appeared in colonial statutes. It was thought that 
their enforcement would be better secured by making 
them a part of the National Constitution. 

Since the adoption of the twelfth amendment, which 
altered the method of electing the President, there have 
been no amendments except those made immediately 
after the civil war, and, as they were the result of that 
war, and their history is well known, they need not be 
considered. 

There are three clauses in the Constitution still re- 
maining undiscussed which were preceded by a slight 
development, and their history can be traced, to some 
extent in colonial times. 

The first is the provision that, when vacancies occur 
in the representation from any State, the executive au- 
thority of the State may issue writs of election to fill 
such vacancies. Some of the colonial charters, like 

312 



Clauses of Short Development 

those of Massachusetts and of Rhode Island, gave the 
assembly authority to fill vacancies in executive offices 
until there should be another election ; but vacancies 
in the assembly were not specially provided for. Some 
of the constitutions of 1776, particularly those of Dela- 
ware, Georgia, and North Carolina, directed that the 
legislature should issue writs of election for filling any 
vacancies that might occur in its membership. The 
Maryland constitution of 1776 provided that such writs 
should be issued by the speaker ; and the Pennsylvania 
constitution of the same year gave general power to the 
president and council to fill all vacancies in office, but 
whether this would include vacancies in the legislature 
is doubtful. The provision in the Maryland constitu- 
tion was like the English practice of that time, by which, 
when a vacancy occurred in the House of Commons, 
the Speaker could order another election to lill the 
vacancy. 

The Constitution also directs that the President shall 
receive a salary, and that the senators and representa- 
tives shall receive a compensation for their services. 
The members of the British Parliament received no 
salaries, and it seems to have been a disputed question 
at the time our National Constitution was framed whether 
members of Congress should be paid for their services. 
Franklin argued very earnestly that they should not be 
paid. The previous documents had usually been silent 
on this subject ; but some of the constitutions of 1776, 
notably that of Virginia and the Massachusetts consti- 
tution of 1780, had provided for the salaries of the gov- 
ernor and other officers ; and the Pennsylvania Frame 

3^3 



Evolution of the Constitution 

of 1696 gave the members of the council five shillings 
a day, the members of the assembly four shillings a day, 
and the members of both bodies twopence a mile for 
travelling expenses. 

The provision in the Constitution requiring the pub- 
lication, from time to time, of a statement and account 
of the receipt and expenditure of all public money had 
appeared before in several of the plans of union. 

This completes our analysis of the Constitution, every 
clause of which has been traced to its origin. The 
analysis seems to show that the Constitution was a 
growth, and that it is as much the result of the natural 
development of progressive history as is the British Con- 
stitution. It was not, as Mr. Gladstone says, "struck 
off at a given time ;" nor was it, as Herbert Spencer 
would have us think, " obtained by a happy accident, 
not by^normal progress ;" and the description of it given 
by Von Hoist and others as "a mere experiment" is 
equally inaccurate. 



314 



CHAPTER IX. 

DUTCH SOURCES. 

The appearance of Mr. Campbell's work, "The Puri- 
tan in Holland, England, and America," was a great 
surprise to both lawyers and scholars. It was an unex- 
pected, stunning blow ; a clap of thunder out of a clear 
sky. Two large, handsome volumes, written in an at- 
tractive, even brilliant manner, informing us in sharp, 
sarcastic sentences, with an immense array of facts, that 
our most cherished liberties and customs were neither 
English nor native, but Dutch, was so dazing that no 
one at first knew what to say, and we have scarcely yet 
mustered courage enough to frame a reply. 

In all other books that describe or criticise our insti- 
tutions, — ^whether written by ourselves or by foreigners, 
— there is not even a suggestion that our sources were 
Dutch. In all our political histories in which every 
event of our growth is given, from the settlement of Vir- 
ginia in 1607 down to the present decade, there is not 
a sentence or a hint that would have led one to this 
discovery of Mr. Campbell's. More than that, if we 
examine the original authorities, the writings and docu- 
ments of the colonists and of the framers of the con- 
stitutions of the States and of the Constitution of the 
nation, we find not a word to show that those men, our 
ancestors, were conscious that they were copying from 

315 



Evolution of the Constitution 

Holland. I certainly never saw an original document, 
letter, speech, or writing of any kind in which a father 
of the republic said that American institutions were of 
Dutch origin, or in which an argument was made in 
favor of transplanting Dutch institutions to America. 
Mr. Campbell quotes no writings of this sort, and it is 
not unfair to infer that none exist. 

His method of proof is not at all documentary, al- 
though in his preface he tells us that documents are the 
only sure tests for the truth of history, and he has much 
to say of modern scientific methods of investigation. In 
the past, he tells us, history was written by legends, 
tradition, and rumor. Public documents were consid- 
ered parts of the private library of the king, and it is 
only of recent years that official records, diplomatic 
correspondence, and state papers have become accessible 
to historians. "One can imagine," he says, "the posi- 
tion of a writer who sat down to compose a work upon 
his own or any other country when such material was 
everywhere kept a secret." But Mr. Campbell seems 
to have taken the place of those ancient kings, and fails 
to furnish his readers with anything in the nature of 
documentary proof 

A great deal of his information, as he frankly admits, 
has been obtained at second hand from miscellaneous 
reading in books like Carnegie's "Triumphant Democ- 
racy," "The Chautauquan," and magazine articles. The 
results of the original research among documents of 
which he says so much in the preface we look for in 
vain, and we find him generously acknowledging that 
he is greatly indebted to Carnegie's "Triumphant De- 

316 



Dutch Sources 

mocracy" for a large number of valuable facts (vol. 
i. p. 22). 

His method of proof may be called the speculative 
method, — the method of suggestion, presumption, prob- 
ability. He wanders round and round his subject with 
telling anecdotes, witticisms, gibes at the ancient histo- 
rians, and paeans to liberty. All European nations ex- 
cept Holland have been so cruel and wicked, and have 
had such ridiculous laws and governments, that, as the 
United States is the only other nation in the world that 
has not been cruel, wicked, and ridiculous, the reader 
may judge for himself as to the possibility, if not proba- 
bility, and perhaps certainty, of the one being derived 
from the other. 

He informs us at great length that the English are 
prone to exaggerate their own merits, trace everything 
to themselves, and ignore the services of other nations. 
The writers of New England have all been men of Eng- 
lish origin, and would naturally, therefore, be silent 
about the Dutch sources and assign their institutions to 
English causes. But if New England was so thoroughly 
permeated with Dutch ideas, as he elsewhere maintains, 
how was it that the writers escaped ? If the Dutch influ- 
ence had been powerful enough to create institutions, 
would it not have been powerful enough to compel 
acknowledgment, or at least an admission or a com- 
plaint ? 

He has a very clever way of throwing out a sugges- 
tion which will leave a significant impression on the 
mind of an ordinary reader. Thus, in his preface, after 
saying that in 1563 the Dutch were famous for their 

317 



Evolution of the Constitution 

ingenuity in inventing all sorts of machines for shorten- 
ing labor, he says, " Here is the Yankee of Europe," 
and this hint, mixed with others of a similar kind, grad- 
ually builds up the feeling that of two countries so nearly 
alike one must be the copy of the other. 

After wandering through hundreds of pages heaping 
up these possibilities, insinuations, and suggestions, and 
doing it in a manner irresistibly bright and attractive, 
Mr. Campbell has completely accomplished his pur- 
pose, — at least temporarily, — for an untrained mind can 
hardly resist the impression that America was thor- 
oughly Dutch in origin ; that our Constitution, the New 
England township system, our land laws, our customs, 
and our general principles of dealing, conduct, and gov- 
ernment are from Holland, not England ; and one begins 
to wonder how it is that the language still remains 
English. 

The book is in its individual sentences very clear, but 
the general arrangement is most confusing to any one 
who wants definiteness and accuracy. It is a mere col- 
lection of points mixed in with a vast assemblage of 
facts and anecdotes taken from the history of nearly the 
whole world. There is no regular, orderly statement of 
propositions to be proved ; no separate statement of 
each individual item of Dutch imitation followed by its 
proof, and no thorough analysis. 

For example, why should not that little item of the 
recording of deeds and mortgages, which he says came 
from Holland, be in a chapter or at least a paragraph by 
itself, with all that can be said in favor of the imitation, 
and then done with it ; and so on with the next item ? 



Dutch Sources 

Why should the recording item be spread out in various 
parts of the book, with references to it every now and 
then ? Why should the careful reader, seeking definite, 
positive knowledge, feel that he must go through the 
ten hundred and twenty-one pages of the two volumes 
with a pencil, setting down any distinct item of imitation 
he can find and putting under it any proof he can collect 
from the whole ? If the work had been divided into 
distinct topics of positive imitations it could all have 
been written in one chapter with sub-headings for each 
imitation, and would hardly have extended much beyond 
the limits of a magazine article. 

In reading the book one examines table of contents, 
text, and chapter-headings in vain in the search for a 
definite division of topics, with proof and argument 
assigned to each, and it is not until near the end of 
the second volume that a page (vol. ii. p. 465) is found 
where the author sums up, with some degree of explicit- 
ness, the American institutions which he thinks he has 
proved were copied from Holland. I shall give the list 
in his own words : 

1. The Federal Constitution as a written instrument. 

2. The provisions in this instrument placing checks on the 

power of the President in declaring war and peace and 
in the appointment of judges and all important execu- 
tive officers. 

3. The whole organization of the Senate. 

4. Our State constitutions. 

5. Freedom of religion. 

6. Free press. 

7. Wide suffrage. 

8. Written ballot. 

319 



Evolution of the Constitution 

9. Free schools for boys and girls. 

10. The township system (with its sequence of local self-govern- 

ment in county and State). 

11. The independence of the judiciary. 

12. The absence of primogeniture. 

13. The subjection of land to execution for debt. 

14. The system of recording deeds and mortgages. 

15. Public prosecutors for crime in every county. 

16. The constitutional guarantee that every accused person shall 

have subpoenas for his witnesses and counsel for his 
defence. 

17. The reforms in our penal and prison system. 

18. The emancipation of married women. 

19. The whole organization of our public charitable and reforma- 

tory work. 

In taking up the instances of imitation I cannot treat 
them either in the order in which Mr. Campbell has 
summed them up or in the order in which they occur 
throughout the book, for neither order would disclose 
the true bearings of the subject. Nor is it necessary to 
discuss every one of them. I shall begin with No. 10, 
^* The township system (with its sequence of self-govern- 
ment in county and State)," because this brings us at 
once to fundamental principles and decides the ques- 
tion, which is, of course, at the bottom of all the others, 
How did the Dutch influence reach America ? 

It is obvious to any one who notices the way in which 
Mr. Campbell has worded this item of imitation, " The 
township system (with its sequence of self-government 
in county and State)," that it is overwhelming in its 
effects. If it is true that the Dutch established the 
New England township system and that that created 
self-government in the counties, and that thence came 

320 



Dutch Sources 

State sovereignty, the Dutch undoubtedly created the 
whole United States. If Mr. Campbell could establish 
that one item No. lO, I for one should be willing to sur- 
render all the others. They would not be worth con- 
tending for, and it would remain merely to call on Mr. 
Campbell to explain by what accident it was that our 
language still remained English and why our courts 
still continued to cite authorities from the English law- 
reports. 

Mr. Campbell's argument I understand to be this : 
The Pilgrim Fathers, so called, were a sect of Brownists 
or Independents who were terribly persecuted for their 
religion in England, and fled to Holland, where they 
lived, first at Amsterdam, afterwards at Leyden, for 
twelve years. During that time they probably acquired 
a knowledge of Dutch institutions, especially the Dutch 
towns, which governed themselves with more or less in- 
dependence. At the end of the twelve years about one 
hundred of them cam^e to America and settled on the 
coast of Massachusetts at a place they called New 
Plymouth, about fifty miles from Boston. 

About ten years after their arrival a large number of 
English people called Puritans came upon the coast 
and settled in the neighborhood of Boston. These peo- 
ple continued to come for about ten years, and vastly 
outnumbered the Independents, or Pilgrim Fathers, who 
had settled at New Plymouth. The new-comers, or 
Puritans, were not Dutch, and had not, as a class, been 
in Holland ; but two of them had, — namely, Dudley, 
who was afterwards governor, and had been a soldier in 
the Dutch army, and Hugh Peters, a minister, who had 

21 321 



Evolution of the Constitution 

once had a congregation in Holland ; and doubtless 
others whom we have not heard of had been in Hol- 
land. They had, however, nearly all of them come 
from the southern and eastern parts of England, where, 
half a century before, large numbers of Dutch immi- 
grants had settled. As we find that all these people in 
Massachusetts established towns which governed them- 
selves in purely local matters, and as there were similar 
towns in Holland, the Massachusetts town system was 
clearly of Dutch origin. 

So much for the entering in of the influence. Mr. 
Campbell goes on to show how it spread. People from 
Massachusetts, some from the Plymouth colony, and 
some from the Puritans, founded Connecticut and es- 
tablished self-governing towns, which were also clearly 
of Dutch origin, because the people who established 
them had been under the Dutch influence in Massa- 
chusetts, and one of these Connecticut settlers, Thomas 
Hooker, the minister, had lived for a time in Holland. 
About the same time that these events occurred in 
New England, or soon after, the Dutch established 
these same self-governing towns in their colony at New 
York. And from these Dutch sources in Massachusetts, 
New York, and Connecticut, establishing the idea of 
local self-government in a town, that idea has spread 
to the whole country, creating the local self-govern- 
ment of our counties all over the Union and the self- 
government of our States, or State sovereignty, as we 
call it. 

This Dutch influence prevailed not only in Massa- 
chusetts, Connecticut, and New York, but, according to 

322 



Dutch Sources 

Mr. Campbell, in New Jersey, which was originally a 
part of the New York Dutch colony ; and it also pre- 
vailed in Pennsylvania and Delaware, because William 
Penn's mother had been a Dutchwoman, and Penn 
himself had travelled in Holland and was familiar with 
its language and people. The northern and middle 
Atlantic States were therefore pervaded by this influ- 
ence, and, as those are the States which have in effect 
created the Union and given forth the dominating prin- 
ciples of American civilization, it is ridiculous to say 
that our ideas and institutions are English. The only 
part of the country where English notions prevailed was 
the South, and all it gave was slavery. Virginia may 
have contributed the idea of the natural equality of 
man, but she borrowed this from the Roman law. 

The Dutch influence, being thus firmly established in 
the dominating part of the country, and having evi- 
dently created the township system with all its conse- 
quences, was also fruitful in establishing other customs, 
laws, and institutions. The Connecticut people, at their 
first settlement, drew up a document creating a legisla- 
ture and government, and this has been called the first 
American written constitution. This idea of reducing 
the principles or form of government to writing must 
have been taken from Holland, because the Netherland 
Republic had existed for about half a century under the 
Union of Utrecht, which was a written constitution. 
These written constitutions became the regulation forms 
for the States after the Revolution, copied, of course, 
from Connecticut's instrument, which was copied from 
Holland ; and, as our Federal Constitution is written, it 

323 



Evolution of the Constitution 

follows that, so far as it is a written instrument, it also 
is of Dutch origin. 

One would suppose that, having proved that our local 
self-government in towns, our State governments, our 
State constitutions as written instruments, and our Na- 
tional Constitution as a written instrument were of 
Dutch origin, Mr. Campbell would be content. But 
he is not, and he goes on piling up the resemblances. 

Religious liberty existed in Holland before it was 
established anywhere else in Europe. We also find it 
among the Dutch in New York and in the laws made 
by Penn for Pennsylvania : so that the American princi- 
ple of religious freedom may be said to have come from 
Holland. It is true that in Massachusetts we find a 
church established by law and heresy punished with 
death ; but this, Mr. Campbell assures us, was because 
the Puritans had not, in this particular, imbibed the full 
measure of the Dutch influence. 

Similarly, we find free schools in Holland, New Eng- 
land, and New York : so that the American public-school 
system had its source in the Netherlands, and it has 
now filled the whole Union. So, also, the system of 
recording deeds and mortgages was unknown in Eng- 
land, but was common practice in the Netherlands, 
whence it was introduced into Massachusetts, New 
York, New Jersey, and Pennsylvania, and thence to the 
whole country. 

In England the distribution of land among small 
holders was fettered by primogeniture, which has now 
given the soil of Great Britain into the hands of a few 
aristocrats and left the mass of the people in poverty, 

324 



Dutch Sources 

with scarcely space on which to stand. The Dutch law, 
which gave equal inheritance to all children, prevailed 
in New York, and was, of course, well known to William 
Penn and the people who settled New England. Hence 
we have in the United States an absence of primogeni- 
ture and an easy and approximately equal distribution 
of land, which has prevented grinding poverty and en- 
couraged the energy and enterprise of our people. 

Such is, in brief, Mr. Campbell's argument. And 
now for something on the other side. 

First of all, we must have a clear idea of the exact 
nature of the New England town system, which Mr. 
Campbell says was introduced from Holland. The New 
England town was a little democracy of people who 
elected their own officers and through them governed a 
district of land much smaller than a count}^ Each town 
also sent its representatives to the general assembly of 
the colony. It was a system of local government by 
means of small districts, each of which had entire charge 
of its own affairs. The peculiarities about it were the 
small size of each district, the absolute control over its 
own affairs, the free voice and vote of all the people in 
exercising that control, and their right to be represented 
as a town in the general assembly. 

But Mr. Campbell's rather vague description of the 
Dutch towns would not imply that they had these charac- 
teristics at the time the English colonies in America 
were settled. The most important one of all — the free 
suffrage and democracy — was absent. ** In few, if any 
of them," he says, " was there an approach to democracy 
in later times. That had passed away with the advance 

325 



Evolution of the Constitution 

of wealth, the rich merchants and manufacturers who 
secured the charters having generally absorbed the power 
originally lodged in the whole body of the freemen." 
(Vol. i. p. I47-) 

Elsewhere (vol. ii. p. 429) he says that the free 
suffrage had been retained in some of the most obscure 
provinces of the northeast, and, as the Pilgrim Fathers 
who came to Massachusetts were not in those provinces 
of the Netherlands, he has a labored argument to show 
how they might, nevertheless, probably have heard 
about it. 

Apparently the only resemblance which the Dutch 
towns near where the Pilgrim Fathers lived bore to those 
established in Massachusetts was that the six important 
ones could send representatives to the assembly of the 
States. The right of the small towns to send repre- 
sentatives and their democratic government had been 
lost hundreds of years before. This makes the resem- 
blance somewhat lame ; and the argument is still further 
weakened by an admission in another passage (vol. i. 
p. 75) that the township system prevailed in Central Asia 
and still exists in Upper India. So the Dutch were, 
after all, not its inventors. 

But let us pass all this for the present, for we shall see 
the Dutchman's idea of town government when we come 
to the history of New York. Let us suppose, for the 
sake of argument, that the towns in Holland were all 
self-governing and represented as towns in the legisla- 
ture, just as Mr. Campbell would like to have them, — 
how does he prove that the Massachusetts people imi- 
tated them ? He must show some connecting link ; he 

326 



Dutch Sources 

must give positive proof of imitation, because without 
this it is perfectly possible that the people of New Eng- 
land developed their town system out of natural condi- 
tions, as the people of Central Asia or of Upper India, 
or the Dutch themselves, developed towns to suit their 
purpose. 

Mr. Campbell, however, neither quotes nor cites any 
document, pamphlet, letter, or writing of any kind in 
which any of the people who settled Massachusetts ex- 
pressed a liking for the Dutch town system or urged its 
adoption in the colony. If they were so infected by the 
Dutch influence, would they not have said something 
about it ? Would they not have argued in its favor and 
urged its extension ? They were great writers. Many 
of them kept diaries and journals that have come down 
to us. We have also their letters, the pamphlets, and 
the books they wrote, all preserved with the scrupulous 
care with which Massachusetts guards every scrap of 
paper relating to her history. How was it that none of 
the Cottons or Mathers — men of such vast learning, the 
authors of so many books and essays on all sorts of sub- 
jects — never touched on Holliand ? How is it that in 
all the writings of Massachusetts, from beginning to end, 
there is nothing Mr. Campbell can quote to show a 
Dutch influence, not merely in this township question, 
but in other things or in general ? 

If there is nothing that shows Dutch influence in gen- 
eral, would not the introduction of some special Dutch 
institution like the towns have aroused comment or 
resistance, and would there not at least be something to 
quote on this point ? Even Mr. Campbell does not con- 

327 



Evolution of the Constitution 

tend that every one of the Puritans was literally an out- 
and-out Dutchman. If there was even a small minority 
of out-and-out Englishmen in the colony, would they 
not have protested against the introduction of a foreign 
method of government, and, like those minorities that 
followed Roger Williams or Anne Hutchinson, raised a 
controversy about it of which there would at least be 
some scrap of evidence? 

As a matter of fact, we all know that there were in 
the colony from the very beginning Church of England 
people and others who objected most strenuously to the 
Puritan methods of government, and sent home reports 
finding all the fault they could think of Other dis- 
gruntled persons went to England in person to make 
complaints. Many of these complaints were addressed 
to royalists and to the Crown with the intention of bring- 
ing down vengeance on the Puritans of Massachusetts 
and depriving them of their charter. They continued 
to be made for fifty years, and in the end were success- 
ful, and the charter was annulled in 1684. 

Now, is it possible that, among all these complaints 
made by Tories, none can be found to the effect that 
the colonists had adopted a foreign system of local gov- 
ernment? Charles II. and James II. had no love for 
Holland, their enemy, and, in the end, the destroyer of 
their dynasty and house. What appeal to their resent- 
ment against Puritan Massachusetts would have been 
more effective than to tell them that the colony was 
adopting the laws and methods of Holland ? 

Mr. Campbell meets none of these points. In fact, 
he admits, in the fullest manner, not only that there was 

328 



Dutch Sources 

no general resemblance to Holland in Massachusetts, 
but that in most respects the colony was the very re- 
verse of Holland in the things for which Holland was 
most famous. Freedom of religion, freedom of the 
press, separation of church and state, and humane laws 
were the great Dutch principles which Mr. Campbell 
says were copied by the United States. But Massachu- 
setts punished heretics with death or banishment, had 
the severest sort of censorship of the press, a church 
established by law, the right to vote and hold office 
confined to church-members, a set of the most bloody 
and cruel laws, punishing more than twenty offences 
with death ; and, as is well known, she kidnapped the 
Indians and sold them as slaves, killed hundreds of peo- 
ple for witchcraft, whipped hundreds of Quakers at the 
cart's tail, and hung four of them for persisting in their 
religious belief 

But a little difficulty like this is nothing to a man 
of Mr. Campbell's ingenuity, and, accordingly, we find 
him saying in explanation (vol. ii, p. 415), "But at 
this period she was in a few respects less advanced 
than her sister colonies, simply because she had ab- 
sorbed less from the Netherland Republic." 

In other words, the colony where, as Mr. Campbell 
contends, the Netherland influence entered — the colony 
where there was more direct Netherland influence than 
in any other part of the country except New York — 
was less like Holland and had fewer of the great Nether- 
land principles than parts of the country where there 
was no Netherland influence at all. 

But let us do some of Mr. Campbell's work for him, 

329 



Evolution of the Constitution 

and examine the early writings of Massachusetts to see 
what they say of this Dutch influence, and also what 
they say about the beginning of the town system. The 
first and most important is Bradford's " History of 
Plymouth Plantation." 

Bradford was the leader of the Pilgrim Fathers. He 
started with them in England when they fled to Hol- 
land. He lived with them during the twelve years' 
sojourn in Amsterdam and Leyden. He came with 
them to Massachusetts, assisted in founding the settle- 
ment at New Plymouth, was elected their governor 
over and over again, and remained with them until his 
death in 1657. He was a man of good education, 
familiar with French, Latin, Greek, and Hebrew, and a 
student of history and theology. His *' History of 
Plymouth Plantation" is the history of an eye-witness, 
and, as it goes very much into details, it is an authority 
of the highest importance. If there was strong Dutch 
influence among his people after they came to Massa- 
chusetts, it would surely show itself in his book. 

But when we read the book there is nothing Dutch 
about it. Indeed, when we consider that he and his 
people had been in the Low Countries for twelve years, 
it is surprisingly free from anything of the sort ; and 
our first thought is, that, as usually happens when 
people of mature years sojourn in a foreign country, 
very little impression had been made upon their minds, 
and they remained the out-and-out Englishmen they 
had been born and bred. If the Pilgrim Fathers had 
gone to the Netherlands when they were children, and 
had grown up in the country, their ideas and conduct 



Dutch Sources 

might have been different. But in the whole book 
there is only one passage showing any liking for Dutch 
ways or giving a Dutch reason for anything, and that 
is an account of the first marriage-ceremony that was 
performed : 

" May 12 was the first marriage in this place which according 
to the laudable custom of the Low Countries, in which they had 
lived, was thought most requisite to be performed by the magis- 
trate, as being a civil thing, upon which many questions about 
inheritances do depend with other things most proper to their 
"cognizance and most consonant to the Scriptures, Ruth 4, and 
nowhere found in the Gospel to be laid on the ministers as a part 
of their office. This decree or law about marriage was published 
by the States of the Low Countries A.D, 1590. That those of 
ia,ny religion after lawful and open publication coming before the 
Magistrates in the Town or State House were to be orderly (by 
them) married to one another. Peters Hist. Fol. 1029. And 
this practice hath continued amongst, not only them, but hath 
been followed by all the famous churches of Christ in these parts 
to this time. Ano. 1646." (Mass. Hist. Coll., 4th series, vol. 
iii. p. loi.) 

I cannot tell, of course, whether Mr. Campbell knew 
of this passage ; but at any rate he does not quote it, and 
it would help him very little. He does not contend, 
so far as I know, that the Dutch, through the Pilgrim 
Fathers, or in any other way, introduced into this coun- 
try the custom of being married before a magistrate 
instead of before a minister of religion. It would be 
in vain to make such a contention, for no such custom 
exists. Our people are almost universally married by 
ministers of religion, although marriages before magis- 
trates, mayors, or competent witnesses of any kind are 

33^ 



Evolution of the Constitution 

usually held valid, as they were in the old common law 
of England. 

So far as it goes, this passage from Bradford would 
prove that the Pilgrim Fathers attempted to introduce 
a Dutch method which has been rejected by the Ameri- 
can people. And the passage is the more noteworthy 
on this account, because it is a rebuke to all those 
spread-eagle writers who assume that everything that 
was done near Plymouth Rock spread out into the whole 
United States, and must be traced back to the rock as 
a cause. 

The passage is the only one I know of in the whole 
range of Massachusetts literature that gives a Dutch ori- 
gin for anything. I was once quite familiar with many 
of the original authorities of the colonial history of Massa- 
chusetts, and I can remember nothing Dutch in them. 
I have not gone over all of them again to write this 
chapter, for it would be a great labor, and is not neces- 
sary. But I have gone over those which relate to the 
first settlement, the time when the town system was 
introduced, and the twenty years that followed. These 
are the ones which are relevant and essential, for, if 
there was as much Dutch influence among the colonists 
as Mr. Campbell asserts, it would have shown itself at 
once, certainly within the first twenty years. If there 
are no signs of it within those twenty years, there is, in 
my opinion, no proof of it. 

I have selected the first twenty years — that is, from 
1620 to 1640 — because after that immigration ceased, 
and there were no more important additions to the 
population by migration until long after the Revolution. 

332 



Dutch Sources 

So far as the Plymouth Plantation is concerned, those 
twenty are more than covered by Bradford's history. 
But the Plymouth colony was very small and unsuccess- 
ful, and the large majority of the Massachusetts popula- 
tion was made up of the Puritans, who, ten years after 
the arrival of the Pilgrims, came and settled in the 
neighborhood of Boston. They increased very rapidly 
for ten or more years by immigration until there were 
about twenty thousand, and after that their increase was 
also rapid by births. 

These people were direct from England, and had 
never sojourned in Holland. But, as Mr. Campbell says 
that they had come from the southern and eastern parts 
of England, to which many Hollanders had migrated 
half a century before, it is necessary to examine an au- 
thority which will include them. There is an excellent 
one, — ''Winthrop's Journal," — which has sometimes 
been published as "Winthrop's History of New Eng- 
land." It is much more voluminous and detailed than 
Bradford's history, and comes down to a later time. 

Winthrop was an accomplished man of some means, 
who came out with the first of the Puritans, was their 
first governor, and was re-elected governor again and 
again for many years. He was a lawyer by education, 
and at the time of his arrival in the colony was forty- 
three years old, in the prime of life, keen, active, inter- 
ested in everything, and recorded day by day in his 
journal minute details of events, and especially contro- 
versies and disputes, in which he usually gave the argu- 
ments of both sides. I have examined this book from 
beginning to end, and, if it contains anything showing 

333 



Evolution of the Constitution 

the sHghtest trace of Holland or Dutch influence, or the 
slightest trace of any institution, custom, or law estab- 
lished for Dutch reasons, I cannot find it. 

So it stands that there is just one solitary passage in 
Bradford's history giving a Dutch reason for establishing 
the custom of marriage by magistrate instead of by 
minister, and this a custom which was not accepted by 
the American people. As Bradford in this instance gave 
his reason for the custom, it is fair to conclude that if 
anything else had been estabHshed for a Dutch reason 
he would have said so, and this conclusion is strength- 
ened when we find that in describing the method of 
allotting land he gives a reason for it, but instead of 
being Dutch it is a Roman reason. 

I shall quote this passage, but before I do so I wish 
to say that Winthrop also gives reasons for the establish- 
ment of many things, and they are usually drawn from 
the Old Testament, which was the chief guide of the 
Massachusetts people in all matters of law and govern- 
ment. It was a rule with the magistrates that when no 
law could be found applicable to a case it must be 
decided according to the Word of God. From the Old 
Testament were drawn their reasons for banishing Anne 
Hutchinson and Roger Williams, hanging the witches, 
and persecuting the Quakers. To give a reason for 
everything they did and give it fully and minutely was 
one of their most prominent characteristics, and I think 
that any one who reads the elaborateness of the argu- 
ments used in " Winthrop's Journal" and elsewhere must 
be impressed with the thought that if there had been a 
Dutch influence at work among these people it would 

334 



Dutch Sources 

have shown itself unequivocally. Moreover, they were 
very original in all their methods, and Mr. Campbell 
is, I think, the first person who has ever charged them 
with plagiarism. 

The passage I wish to quote from Bradford in which 
the land allotment seems to remind him of Rome is a 
very important one : 

' ' That they might therefore encrease their tillage to better ad- 
vantage, they made suite to the Governor to have some portion of 
land given them for continuance, and not by yearly lotte, for by 
that means, that which the more industrious had brought into 
good culture (by much pains) one year, came to leave it the next, 
and often another might enjoy it ; so as the dressing of their lands 
were the more sleighted over, and the less profit. Which being 
well considered, their request was granted. And to every person 
was given only one acre of land, to them and theirs, as near the 
town as might be, and they had no more till the seve?i years were 
expired. The reason was, that they jnight be kept close together 
both for more safety and defence, and the better improvement of 
the general e^nployments . Which condition of theirs did make 
me often think, of what I had read in Pliny of the Romans first 
beginnings in Romulus time. How every man contented himself 
with two acres of land, and had no more assigned them. And 
chap three. It was thought a great reward to receive at the hands 
of the people of Rome a pint of corn. And long after, the great- 
est present given to a Captain that had got a victory over their 
enemies was as much ground as they could till in one day. And 
he was not counted a good, but a dangerous man, that would not 
content himself with seven acres of land. As also how they 
pound their corn in mortars, as these people were forced to do 
many years before they could get a mill." (Mass. Hist. Coll., 4th 
series, vol. iii. 167.) 

Now I have quoted this passage not only for the 
suggestion about Rome which it contains, but because 

335 



Evolution of the Constitution 

it shows the origin of the towns. * ' Every person was given 
only one acre of land," he says, and " as near the town 
as might be," and "the reason was that they might be 
kept close together both for more safety and defence and 
the better improvement of the general employments." 

This is the earliest mention of the towns in any Mas- 
sachusetts writing. The event of the allotment of land 
of which he speaks happened in 1624, four years after 
the colony was founded, and he refers to the town as in 
existence, which of course it was ; for when the Pilgrims 
landed they built a town of log huts, and they dared do 
nothing else. The barren nature of the country and the 
immediate hostility of the Indians forbade them to spread 
out. They must keep together for mutual defence and 
for their fishing and trade on the sea. 

At first they held their land in common, and it was 
cultivated for the public benefit. But at best their agri- 
culture was merely the cultivation of garden patches. 
When they passed beyond the communism and garden 
stage the people still lived in the town and went out to 
cultivate their lots, which, as Bradford says, were kept 
as near the town as possible. All other towns in Mas- 
sachusetts, and, for that matter, in New England, were 
arranged on the same plan, not because of anything in 
Holland or Rome, but because it was a necessity. 

When we examine ''Winthrop's Journal" we find two 
passages confirming this view. A few days after his 
arrival with the first ship-load of Puritans that were to 
begin the second colony, which in the course of years 
absorbed the Plymouth people, he made an entry as 
follows : 

33^ 



Dutch Sources 

*• December 6th, 1630. The Governor and most of the assist- 
ants and others met at Roxbury, and there agreed to build a town 
fortified upon the neck between that and Boston. " (" Winthrop' s 
History of New England," Savage's edition, vol. i. p. 38.) 

Practical difficulties, such as want of water, prevented 
the carrying out of this plan, and a few days after we 
have another entry : 

"Dec. 21. We met again at Watertown, and there, upon 
view, of a place a mile beneath the town, all agreed it a fit place 
for a fortified town." {Id., vol. i, p. 39.) 

In each instance he speaks of a ''fortified" town ; not 
a mere straggling settlement, but something more com- 
pact, complete, and self-sustaining ; the sort of com- 
munity that every one who landed on that stern coast 
knew to be a prime necessity. 

And so we have both Bradford and Winthrop men- 
tioning the town, referring to it as something which was 
a matter of course, Bradford giving reasons for keeping 
all the people close to the town, even when they were 
cultivating their land, and neither he nor Winthrop re- 
ferring to Holland in any way whatever. On the con- 
trary, Bradford says that the arrangement about the 
land reminds him of what he had read of Rome. 

In Virginia the natural conditions enabled the reverse 
plan to be followed. The mildness of the climate and 
the richness of the soil soon revealed that there was not 
only a livelihood, but wealth, to be gained by spreading 
out and cultivating large tracts of land. This was the 
natural method in all the southern colonies, and, ac- 
cordingly, the county became the unit of local govern- 
ment instead of the township of New England. 
22 ZZl 



Evolution of the Constitution 

The township system would have been an impossi- 
bility in the South, where a single farm was often as 
large as a New England township ; and farther south 
than Virginia several townships could have been put 
within a single plantation. The county system became 
an inevitable necessity, and we find it everywhere in the 
South, becoming of less absolute importance as we go 
north, until, in Pennsylvania, we have a combination of 
the two systems, — town and county. 

But it is to be observed that the first settlers in Vir- 
ginia huddled together in Jamestown and held their 
land in common like the Pilgrim Fathers ; and for the 
same reason. They feared the Indians ; and at first M 

they gained their livelihood from the fish in the water 
and vast quantities of wild fowl along the shores and a 
few little patches of land, which they cultivated more 
as gardens than as farms. But as soon as they learned 
the natural capacity of the country they spread out far 
and wide. Their energies became absorbed with in- 
land occupations, and they cared little for the sea and 
ships. 

The New Englanders, on the other hand, were obliged 
to continue as they had begun. They were compelled 
to devote themselves to the sea more and more or starve. 
The difficulties with the Indians never ceased, and be- 
fore long the alliance of the French and Indians made 
the danger continuous down almost to the time of the 
Revolution. Town life was therefore a necessity, both 
for safety and for trade. 

As the Massachusetts people advanced into the inte- 
rior they moved by towns, for the same reasons and 

338 



Dutch Sources 

with the same caution that they had estabHshed towns 
on the sea-coast. The town was usually set on a hill- 
top, or on high land. The people went out from it to 
cultivate their lots, and there was a law that no dwelling 
in any new plantation should be situated more than a 
mile from the meeting-house. (Palfrey's " New Eng- 
land," vol. i. p. 434.) 

The advancement of the town system into the inte- 
rior, of course, gave some protection to the sea-coast 
towns against the Indians, but they continued in their 
self-governing character because the other conditions 
remained unchanged and the people were all engaged 
in trade, commerce, and ship-building. Their agri- 
cultural interests were slight, and, from the nature of 
the soil and climate, incapable of being much enlarged. 
But commerce, ship-building, and the carrying trade 
of the world were capable of indefinite expansion, and 
to these the people devoted their utmost energies, with 
the result we all know. 

That whatever people lived in New England would 
necessarily be merchants, fishermen, and ship-owners, 
and therefore townsmen, was clearly foreseen in the 
earliest times, and the reasons for the origin of the 
towns which I have advanced receive very strong sup- 
port from a pamphlet issued in 1622 by the Council for 
New England, entitled "A Brief Relation of the Dis- 
covery and Plantation of New England." 

This Council was a company chartered by the Crown, 
and its full title was "The Council Established at 
Plymouth, in the County of Devon, for the Planting, 
Ordering, Ruling, and Governing of New England in 

339 



Evolution of the Constitution 

America." The Plymouth colony of the Pilgrim Fathers 
was within its domain, and obtained from it a patent for 
its land. The Council intended to manage its great 
domain of New England for profit and the glory and 
extension of the British Empire, and the pamphlet was 
intended to describe the country and encourage settlers. 
It begins with an account of the many voyages of dis- 
covery sent out under the auspices of the Council ; then 
follows a description of the climate, animals, and vari- 
ous products, and the last chapter tells of the sort of 
government the Council intends to enforce. Beginning 
with praise of monarchical forms, the chapter goes on to 
show how the people will nevertheless have full repre- 
sentation in making laws. And then comes the follow- 
ing paragraph z 

' ' And there is no less care to be taken for the trade and pub- 
lique commerce of merchants whose government ought to be 
within themselves, in respect of the several occasions arising be- 
tween them, the tradesmen and other the Mechanicks, with whom 
they have most to do ; and who are generally the chief inhab- 
itants of great cities, and towns, in all parts ; it is likewise pro- 
vided, that all the cities in that territory, and other inferior towns 
where tradesmen are in any numbers, shall be incorporated and 
made bodies politique, to govern their affairs and people as it shall 
be found most behoveful for the publique good of the same ; ac- 
cording unto the greatness or capacity of them, who shall be 
made likewise capable to send certain their deputies, or Burgesses 
to this pubhque assembly, as members thereof, and who shall 
have voices equal with any of the rest." 

It seems to me that this passage settles the question 
beyond any reasonable doubt Here we have a council 
of persons, many of them noblemen, all of them living 

340 



Dutch Sources 

in England, in no way connected with Holland, and yet 
before the New England town system had come into 
existence they recommended self-governing towns and 
town representation as part of the government of the 
country. They give their reasons for it. Merchants and 
traders must necessarily live in towns, and not only ought 
they to be allowed to rule themselves in their own local 
affairs, but their towns should have representation as 
towns in the legislative assembly of the country. 

The passage, it will be observed, recommends two 
essentials, which afterwards became the characteristic 
features of the New England town system, — namely, 
that the towns should be independent, and that they 
should be represented as towns in the legislature. 

If any one has a fancy for fixing upon any one passage 
or place as the origin of the New England towns, there 
it is. But I do not like that way of putting it The 
New England towns originated in the necessities and 
circumstances of the country, — necessities and circum- 
stances which the Council, the settlers, and every one 
saw who became familiar with the land ; and it cannot 
be said that any one man or set of men had the honor 
of the invention. 

The Council of New England saw that the colonists 
would of course be traders and fishermen, dealing in 
ships, fish, lumber, and furs ; agriculture would be of 
little importance ; and the principal part of the people 
would live in towns on the sea-coast, some of them large 
towns ; and many of the people would become great 
merchants. They not only knew this, but they were 
aware that every one else who thought of going to New 

341 



Evolution of the Constitution 

England knew it ; and unless they made the govern- 
ment of the country attractive to this merchant class 
and gave them special privileges, they would not go. 

There was nothing new in a town governing itself and 
becoming a political entity of more or less local inde- 
pendence. The idea is a simple and natural one, spring- 
ing up instantly when circumstances suggest it as valu- 
able to accomplish a result. History is full of instances, 
— the Greek towns, Rome, the free cities of the Middle 
Ages, as well as the towns of Holland. But the Council 
of New England needed no assistance from such sources 
any more than did the captains and sailors who visited 
the New England coast and saw and reported the evi- 
dent and only way of settling and living upon it. 

When we look into the history of the Massachusetts 
laws relating to the towns we find that the towns existed 
before any laws were made about them. They sprang 
up naturally, instantly, and spontaneously wherever a 
company of settlers pitched upon a tract of land as suit- 
able for their purpose. 

Palfrey, in his history of New England, gives us the 
history of the laws very clearly. The first record is in 
1630, when Boston, Charlestown, and Watertown were 
given their names. The next year each town is required 
to provide its inhabitants with arms, — a significant re- 
quirement in view of the circumstances already men- 
tioned. In 1635 the general court, after saying that 
" particular towns have many things which concern only 
themselves," goes on to regulate them in some general 
matters. In Charlestown it was found that there was 
" great trouble and charge of the inhabitants by reason 

342 



Dutch Sources 

of the frequent meeting of the townsmen in general," 
and because a large body in mass-meeting could not 
properly transact numerous details ; and so it was de- 
cided to appoint eleven men to attend to the town's 
affairs. Other towns, as they grew large, adopted the 
same plan, and the men chosen for this purpose became 
gradually known as the selectmen. 

By the year 1635 the town system was settled and 
established, and any one who wishes to prove a Dutch 
influence must prove it to have been at work before that 
year, — that is, between the years 1620 and 1635. But 
there is nothing in the laws or in any other contempora- 
neous document to show the slightest trace of Dutch 
feeling. In fact, every step of the development, so far 
as it can be traced, has all the characteristics of an in- 
digenous growth. 

The discussion of the subject would, however, be in- 
complete without a further consideration of some of 
Mr. Campbell's arguments. He is not satisfied with the 
Dutch influence which he supposes was so strong among 
the people of the Plymouth colony, but attempts to show 
that the Puritans, who came afterwards and settled in 
the neighborhood of Boston, were also under that in- 
fluence. 

These Puritans came direct from England and had 
never been in Holland. They were numerous, powerful, 
and rapidly filled the country, and there is not a scrap of 
writing by any one of them to show that they admired 
Dutch methods or were affected by Dutch influence. 
But this is a mere trifle for Mr. Campbell, and a few of 
his clever sentences dispose of it : 

343 



Evolution of the Constitution 

* ' Most of the men who founded this colony emigrated from the 
eastern and southern counties of England, in which, as we have 
seen, Cromwell raised his army ; the counties in which a hundred 
thousand Netherland refugees had taken up their residence half 
a century before, and which always had the most intimate rela- 
tions with the Dutch Republic. All of these men were acquainted 
with Netherland institutions. Some of them, we know, had 
passed years in Holland. Governor Dudley, for example, had 
been a soldier in the Dutch army. The famous clergyman, Hugh 
Peters, presided over a congregation at Rotterdam from 1623 to 
1635, and there were doubtless many others among the rank and 
file unknown to history who had also lived in that asylum of the 
persecuted." 

This is one of the most charming passages in his book, 
and, for the boldness and at the same time subtlety of 
its assumptions, can hardly be equalled in all literature. 
"Most of the men," he says, "who founded this colony 
came from the eastern and southern counties of Eng- 
land." That is very likely. A glance at the map shows 
that this delightfully vague phrase, " the eastern and 
southern counties," includes fully half of England. In 
the north England is very narrow, but in the south it 
spreads out very wide. A majority of the people have 
always lived in the south of it, and London itself has 
always been in the southern and eastern counties. In 
other words, Mr. Campbell says that the Massachusetts 
Puritans came from those parts of England where the 
majority of the English people lived ; and I suppose it 
is not worth while to dispute this assertion. 

His next assertion is that fifty years before a hundred 
thousand Netherlanders had taken refuge in those " east- 
ern and southern counties." Well, suppose they had, 
where is the proof that they infected with their ideas the 

344 



Dutch Sources 

particular Puritans that came to Massachusetts ? Why 
should they have infected them ? They were refugees 
from their own country because it had become too hot 
to hold them, and why should they have made a special 
point of introducing its institutions ? How was it that 
they infected the particular persons who came to Massa- 
chusetts, and not the rest of the English people who 
stayed at home ? 

As in the absence of direct evidence the whole ques- 
tion is one of assumption only, is it not equally reason- 
able to assume that a hundred thousand Netherland 
refugees, scattered through the wide extent of the 
eastern and southern counties among millions of the 
hard-headed, insular English people, would have not the 
slightest influence ? 

Next, he says that these counties "always had the 
most intimate relations with the Dutch Republic." But 
what does this vague expression mean? "Most inti- 
mate relations" could hardly have existed between those 
counties and the Netherlands without England becoming 
all Dutch or Holland becoming all English. If Mr. 
Campbell could show that the particular persons who 
migrated from those counties to Massachusetts had been 
in Holland or had intimate relations with Holland, what- 
ever that may mean, he might advance his cause. But 
he makes no such attempt ; and his wild assertion that 
all eastern and southern England was most intimate 
with Holland, and that any one who came from those 
parts of England would necessarily establish Dutch in- 
stitutions wherever he went, is a mere trap for the unwary. 

Again, he says ** all of these men were acquainted 

345 



Evolution of the Constitution 

with Netherland institutions." Hardly all of them ; for 
all sorts and conditions were to be found among the 
Puritans. He probably means that the leaders and men 
of education were acquainted with Netherland laws and 
government In this sense we can readily admit his 
assertion, and add to it that they were also well ac- 
quainted with the institutions of antiquity, Greek, Ro- 
man, and Jewish, and also with the laws and methods 
of government of France, Spain, and possibly Central 
Asia and Upper India. Men in all ages and in all na- 
tions have often been well acquainted with the laws and 
usages of other countries. Such an assertion, in the 
absence of direct, positive evidence of imitation, proves 
nothing. 

But the best comes last. "Some of them," he says, 
"we know, had passed years in Holland ;" and then he 
goes on to mention two, — Dudley and Hugh Peters. 
Now, Peters did not reach the colony until 1635, and 
by that time the town system was firmly established ; so 
he could not have had anything to do with it ; and, as 
he remained in the colony only six years, his after-influ- 
ence could not have been very great. So it comes to 
this, that, after asserting that "some of them had passed 
years in Holland," he has one person to make his as- 
sertion good, — one out of more than ten thousand. 
Dudley had a great task in converting that remnant ; 
and if he really performed it, all the other great men of 
the earth should sink into insignificance. 

But Mr. Campbell is always equal to any emergency, 
and, after giving his two solitary instances, he adds, 
" and there were doubtless many others among the rank 

346 



Dutch Sources 

and file unknown to history who had also lived in that 
asylum of the persecuted." Could anything be more 
complete than this ? The less evidence you have, and 
the more utterly ignorant you are of the existence of a 
fact, the more surely you can prove it. Just confess 
your ignorance, offer no proof whatever, and add, "but 
there were doubtless" — whatever you want. 

Wishing to be entirely candid with Mr. Campbell, 
I have looked all through Winthrop's journal to see 
if I could find any support for this ''doubtless there 
were others," and I succeeded in finding one person. 
Captain David Patrick, who had served in the Dutch 
army. As he came out with Winthrop and the first 
settlers, he will replace Hugh Peters, and Mr. Campbell 
will still have two persons to introduce Dutch influence. 

Patrick had been brought out to help drill the militia, 
and even if he did not establish the town system it 
would, I should think, be open to Mr. Campbell to as- 
sert that ''possibly," or "probably," or "doubtless," he 
introduced the Dutch military system, which would, of 
course, spread from Massachusetts to the whole United 
States. This would explain at once the wonderful suc- 
cess of the Continental army in the Revolution. Tren- 
ton, Saratoga, and Yorktown would no longer be mys- 
terious successes ; and, as Patrick introduced his system 
in the North, we could the more easily understand the 
triumph of the North over the South in the civil war. 

Patrick, however, was not congenial to the Puri- 
tans. They could not altogether approve of his morals ; 
and after many difficulties, and becoming " proud and 
vicious," as Winthrop tells us, he fled to the Dutch at 

547 



Evolution of the Constitution 

New York, where he was murdered by one of those 
hberal people. (Winthrop's ** New England," vol. ii. p. 

Mr. Campbell's book gives the impression that the 
Plymouth people were very much enamoured of Hol- 
land, and if this were so it might help out his pre- 
sumptions and inferences. But let us see what Bradford 
says on this point. 

He begins his history by telling us that his people 
were very unwilling to leave England. They were per- 
secuted for their religion ; but they would have re- 
mained if they could. Like many others, they loved 
their country none the less because they were perse- 
cuted. What they desired was to convert their country 
to their own way of thinking. They believed that their 
religion was the true English religion. 

"But to go into a country they knew not (but by hearsay), 
where they must learn a new language, and get their living they 
knew not how, it being a dear place, and subject to the miseries 
of war, it was by many thought an adventure almost desperate, 
a case intolerable, and a misery worse than death." (Mass. Hist. 
Col., 4th series, vol. iii. p. 11.) 

Arrived in Holland, they had religious liberty, it is 
true, but in other respects they did not prosper. They 
were ground down by the most wretched poverty, and 
such was the "hardness of the place and country" that 
their friends in England would not join them. That is 
to say, the English dissenters and Puritans, who were 
bitterly persecuted in England, preferred to remain in 
their own country and endure the persecution rather 

348 



Dutch Sources 

than subject themselves to the miseries and privations 
of Holland. 

This does not comport very well with the impression 
we gather from Mr. Campbell's book, that the whole 
mass of English dissenters not only knew all about Hol- 
land, but admired its methods and customs, and were 
running to and fro all the time and on '* the most inti- 
mate relations." When we come down to actual evi- 
dence on the subject, those who knew all about the 
Netherlands were not so very well pleased with what 
they knew, and those who really were on "the most 
intimate relations' ' with that country were very glad to 
get away from it. 

*'In the agitation of their thoughts, and much discourse of 
things here about, at length they began to incHne to this conclu- 
sion, of removal to some other place. Not out of any new-fan- 
gledness, or other such like giddy humor, by which men are 
oftentimes transported to their great hurt and danger, but for 
sundry weighty and solid reasons ; some of the chief of which I 
will here briefly touch. And first, they saw and found by expe- 
rience the hardness of the place and country to be such, as few 
in comparison would come to them, and fewer that would bide it 
out, and continue with them. For many that came to them, and 
many more that desired to be with them, could not endure that 
great labor and hard fare, with other inconveniences which they 
underwent and were contented with. 

* -x- -K- -x- * -x- * 

* ' Yea, some preferred and chose the prisons in England, rather 
than this liberty in Holland, with these afflictions. But it was 
thought that if a better and easier place of living could be had, it 
would draw many, and take away these discouragements. Yea, 
their pastor would often say, that many of those who both wrote 
and preached now against them, if they were in a place where 

349 



Evolution of the Constitution 

they might have liberty and live comfortably, they would then 
practise as they did. 

4f * -x- * * * * 

' ' And therefore according to the divine proverb that a wise 
man seeth the plague when it cometh, and hideth himself, Prov. 
22, 3, so they like skilful and beaten soldiers were fearful either 
to be entrapped or surrounded by their enemies, so as they should 
neither be able to fight nor fly ; and therefore thought it better 
to dislodge betimes to some place of better advantage and less 
danger, if any such could be found. 

* ^ * * * * -x- 

* ' For many of their children that were of the best dispositions 
and gracious inclinations having learned to bear the yoke in their 
youth and wilhng to bear part of their parents' burden, were often 
times, so oppressed with their heavy labors, that though their 
minds were free and willing, yet their bodies bowed under the 
weight of the same, and became decrepid in their early youth ; 
the vigor of nature being consumed in the very bud as it were. 
But that which was more lamentable, and of all sorrows most 
heavy to be borne, was that many of their children, by these oc- 
casions and the great licentiousness of youth in that country and 
the manifold temptations of the place, were drawn away by evil 

examples into extravagant and dangerous courses So 

that they saw their posterity would be in danger to degenerate 

and be corrupted They lived here but as men in exile 

and in poor condition." 

These passages, it seems to me, make the situation 
very clear. The great mass of the EngHsh dissenters, 
though persecuted and unable to make England alto- 
gether the country they wished it to be, preferred 
nevertheless to remain and endure these evils and wait 
for better times, like the sturdy hearts of oak they were. 
A small company of them, however, after many mis- 
givings, went to try life in Holland ; and, though they 

350 



Dutch Sources 

were not persecuted, their experiment was in other re- 
spects a failure. 

What they wanted was England without persecution ; 
and they decided that the way to realize that ideal as 
nearly as possible was to go out on some of the wil- 
derness land that belonged to England on the North 
American continent. They could have gone to one 
of the Dutch possessions, and were strongly urged to ' 
do it. Indeed, it would have been easier and more 
profitable for them. But they preferred the harder way 
beneath the English flag. 

Besides Bradford, there is another excellent authority 
on these points, — Edward Winslow, who had been in 
Holland, and who came out on the Mayflower with the 
Pilgrims, and was afterwards their governor. Among 
his writings there is a pamphlet called '*A Brief 
Narrative," in which he gives the reasons for leaving 
Holland so clearly and to the point that comment is 
unnecessary : 

"But our reverend pastor, Mr. John Robinson, of late mem- 
ory, and our grave elder, Mr. William Brewster (now at rest with 
the Lord,) considering, amongst many other inconveniences, how 
hard the country was where we lived, how many spent their estate 
in it, and were forced to return for England, how grievous to live 
from under the protection of the State of England, how like we 
were to lose our language and our name of English, how little 
good we did or were like to do to the Dutch in reforming the 
sabbath, how unable there to give such education to our children 
as we ourselves had received, etc. , they, I say, out of their Chris- 
tian care of the flock of Christ committed to them, conceived, if 
God would be pleased to discover some place to us (though in 
America) and give us so much favor with the King and State of 

351 



Evolution of the Constitution 

England as to have their protection there, where we might enjoy 
the like liberty, and where, the Lord favoring our endeavors by 
his blessing, we might exemplarily show our tender countrymen 
by our example, no less burdened than ourselves, where they 
might live and comfortably subsist, and enjoy the like liberties 
with us, being freed from anti-christian bondage, keep their name 
and nation, and not only be a means to enlarge the dominions 
of our State, but the church of Christ also, if the Lord have a 
people amongst the nations whither he should bring us etc. here- 
by in their great wisdoms they thought we might more glorify 
God, do more good to our country, better provide for our pos- 
terity, and live to be more refreshed by our labors, than ever we 
could do in Holland, where we were." (Young's "Chronicles 
of the Pilgrim Fathers," p. 381.) 

For many years after the Plymouth people were set- 
tled in Massachusetts the Dutch occupied the country 
about two hundred miles southwest of them, at New 
York. Dutch vessels were frequently working their 
way through Long Island Sound and up the Connecti- 
cut River, exploring the country with the hope of an- 
nexing it. They were very pleasant and friendly towards 
the Plymouth people, with a view of including them 
within the settlement at New York and having the 
whole of New England as a part of the Dutch colony. 
But we find that Bradford and his people withstood 
them, and distinctly warned the Dutch governor not to 
trespass within the bounds of New England. Winslow 
even went so far as to present a petition to the Lords 
Commissioners for Plantations in England asking for 
authority to resist the encroachments of both the Dutch 
and the French. (Mass. Hist. Coll., 4th series, vol. iii. 
p. 225, note, p. 328.) 

As to the Puritans at Boston, they also had no par- 

352 



Dutch Sources 

ticular liking for the Dutch at New York, and there 
are a number of passages in Winthrop's journal that 
show it. Judging from these, the Puritans had no sym- 
pathy with the Dutch religion, and regarded the Dutch 
colony merely as a place to which their heretics and 
exiles fled. A man or woman who was not moral 
enough or orthodox enough to live in Massachusetts 
went to the Hollanders at New York : 

' ' They lay windbound sometime at Aquiday ; then as they 
passed Hellgate between Long Island and the Dutch, their pinnace 
was bilged upon the rocks, so as she was near foundered before 
they could run on next shore. The Dutch governor gave them 
slender entertainment ; but Mr. AUerton of New Haven, being 
there, took great pains and care for them." (Winthrop's "New 
England," Savage's edition, vol. ii. p. 96.) 

" The lady Moodye, a wise and anciently religious woman, 
being taken with the error of denying baptism to infants, was 
dealt withal by many of the elders and others, and admonished 
by the church of Salem (whereof she was a member) but persist- 
ing still and to avoid further trouble etc. she removed to the 
Dutch against the advice of all her friends. Many others, in- 
fected with anabaptism, removed thither also, she was after ex- 
communicated." {Id.y p. 123.) 

"These people" (Mrs. Hutchinson and some others who had 
been banished for heresy) ' ' had cast off ordinances and churches, 
and now at last their own people, and for larger accommodation 
had subjected themselves to the Dutch." {Id., p. 136.) 

"Other affairs were transacted by the commissioners of the 
United Colonies {i.e., the New England Union of 1643) as writing 
letters to the Swedish Governor in Delaware River, concerning 
foul injuries offered by him to Mr. Lamberton and those people 
from New Haven who had planted there, and also to the Dutch 
Governor about the injuries his agent there had also offered and 
done to them as burning down their trading house, joining with 
the Swedes against them, etc." {Id,, p. 140.) 

23 353 



Evolution of the Constitution 

"The United Colonies having made strict orders to restrain 
all trade of powder and guns to the Indians, by occasion whereof 
the greatest part of the beaver trade was drawn to the French 
and Dutch, by whom the Indians were constantly furnished with 
those things, though they also made profession of like restraint, 
but connived at the practice, so as our means of returns for Eng- 
lish commodities were grown very short." {Id., p. 311. See also 
pp. 314, 315, 324, 327.) 

"About this time we had intelligence of an observable hand 
of God against the Dutch at New Netherlands, which though it 
were sadly to be lamented in regard of the calamity, yet there 
appeared in it so much of God in favor to his poor people here, 
and displeasure towards such as have opposed and injured them, 
as is not to be passed by without due observation and acknowledg- 
ment." {Id., p. 316.) 

The last quotation refers to the drowning of sixty- 
Dutchmen in a shipwreck, among whom was Kieft, 
who had once been governor at New York. Other pas- 
sages of similar import might be cited, but it is needless 
to multiply them. 

The next source of Dutch influence after Massachusetts 
was, Mr. Campbell tells us, in New York. Of course, 
every one knows that the Dutch were there for about forty 
years before the English conquest, and when the asser- 
tion is made that these Dutch had the town system, free- 
dom of religion and of the press, recording of deeds, 
equal inheritance of land, and various other valuable 
customs, most persons are ready to infer that these 
things spread thence to the whole United States. 

But let us examine these assertions, which are made in 
Mr. Campbell's usual liberal manner, without citing any 
authority whatever. The Dutch had towns, of course. 
People have had towns everywhere, and, as the Dutch 

354 



Dutch Sources 

at New York were principally traders and the Indians 
were very hostile, it was absolutely necessary that they 
should live in towns and have them fortified. But were 
these towns self-governing, and did they send representa- 
tives to the legislature, after the manner of the Massa- 
chusetts system ? The most superficial glance at the 
history of New York shows that the Dutch towns never 
sent representatives to the legislature, for the very good 
reason that during the Dutch dominion there was no 
legislature in the colony. 

This is the first check one receives after reading Mr. 
Campbell's extravagant eulogies. The Dutch, the au- 
thors of all our American liberty and institutions, had 
not, it seems, progressed so far among themselves as to 
have representative government in their own colony. 
Now the English colonies — those that were owned by 
feudal proprietors as well as those whose charters were 
granted by kings — had representative government from 
the beginning. But in Dutch New York it was not 
established, and could not be established, although the 
people rebelled and clamored for it. 

There was no self-government in the Dutch colony at 
large, and no self-government in the towns. These towns 
were mere ordinary towns, and had none of the peculiar 
characteristics of the New England system. In some of 
these Dutch towns on Long Island English people from 
New England had settled, and they demanded local 
self-government for themselves. It was granted to pacify 
them and avoid offence to New England : 

" It is a suggestive fact that the first town court erected by the 
Dutch was one for the benefit of the English residents of Hemp- 

355 



Evolution of the Constitution 

stead, Long Island, a place then within New Netherland. In 
1 644 Kieft granted land to Robert Fordham, John Strickland, and 
other persons of English origin, then in allegiance to the States- 
General, with corporate powers including the right to nominate 
magistrates for the governor's selection; and to establish laws by 
ordinances with the consent of the inhabitants. ... So extraordi- 
nary a grant of self-government at this early period was intended 
to placate the border English." (Fowler's " Introduction to Laws 
and Acts of New York." Published by Grolier Club, p. 23.) 

The Dutch notion of municipal government was, as 
Bancroft puts it (History of the United States, vol. ii. p. 
305, ed. 1846), that " the city had privileges, not the citi- 
zens." Citizenship was a mere commercial privilege, 
not a political enfranchisement. The Dutch in New 
York learned all they knew of the self-government of 
towns from the New Englanders. Indeed, so far as 
they learned any lessons at all in liberty they came from 
the same source. When the people on one occasion 
clamored for representative government they were in- 
cited by New England influence, and Stuyvesant, the 
governor, in rebuking them, said : "Will you set your 
names to the visionary notions of the New England 
men?" (Bancroft, vol. ii. pp. 306, 307.) 

He was supported in his rebuke by the West India 
Company, which declared that the demand for repre- 
sentation was ** contrary to the maxims of every enlight- 
ened government. Have no regard to the consent of 
the people, and let them no longer indulge the visionary 
dream that taxes can be imposed only with their con- 
sent." These New York Dutch were so far from intro- 
ducing into America any liberty of their own that they 
were planning to copy English liberty and were listening 

356 



Dutch Sources 

complacently to proposals of submitting themselves to 
English jurisdiction. All this is commonplace New 
York history, which Mr. Campbell could easily have 
discovered. 

Mr. Campbell has much to say about freedom of 
religion and the absence of an established church in 
America, and much abuse for the English established 
church and English persecution. We cannot possibly, 
he says, have derived our religious liberty and separa- 
tion of church and state from Great Britain. It must 
have been introduced among us by the Dutch. Possi- 
bly so. But O'Callaghan's volume of the Dutch laws 
and ordinances in New York does not give one that 
impression : 

' ' Whereas we daily find that many vagabonds, Quakers and 
other Fugitives are, without the previous knowledge and consent 
of the Director General and council, conveyed, brought and 
landed in this government, and sojourn and remain in the re- 
spective villages of this Province, without those bringing them 
giving notice thereof, or such persons addressing themselves to 
the government and showing whence they come, as they ought 
to do, or that they have taken the oath of fidelity the same as 
other inhabitants ; the Director General and Council, therefore, 
do hereby order and command all skippers, sloop captains and 
others, whomsoever they may be, not to convey, or bring, much 
less to land within this government, any such vagabonds, Quakers 
and other Fugitives, whether men or women, unless they have 
first addressed themselves to the government, have given informa- 
tion thereof and asked and obtained consent, on pain &c. * ' (O' Cal- 
laghan's " Laws and Ordinances of New Netherland," p. 439.) 

" The sheriff and Magistrates shall, each in his quality, take 
care that the Reformed Christian Religion be maintained in con- 
formity to the Synod of Dordrecht, without permitting any other 
sects attempting anything contrary thereto." (/^., p. 476.) 

357 



Evolution of the Constitution 

Under these Hberal Dutchmen in New York, Roman 
Catholics, Baptists, Quakers, and Jews were ostracized 
and refused the right to hold public worship. The 
Lutherans, after a struggle, secured a minister for them- 
selves, and the English Presbyterians and Congregation- 
alists were allowed their ministers because it was impor- 
tant to please them. Whatever religious liberty existed 
in New York was due to the English and the Lutherans, 
and not to the Dutch. (O'Callaghan's Laws, etc., vi.) 

The truth is that the Dutch rule in New York was a 
stifling monopoly of the most arbitraiy kind. The land 
was granted in large fiefs to patroons with the intention 
of creating a privileged class and aristocracy. Stuy- 
vesant undertook to enforce religious uniformity and 
relentlessly persecuted the Lutherans and the Quakers, 
and, as a matter of fact, religious liberty was established 
in the colony when the English took it in 1664. At 
the same time representative government appeared. 

Mr. Campbell seems to think that fair and honorable 
treatment of the Indians was a Dutch idea. If it was, 
the Indians were very ungrateful, for they slaughtered 
the Dutch without mercy. Every town and village had 
to be fortified, and at times they almost chased the 
Dutchmen out of the country. There was one episode 
in particular which shows the Dutch idea of honor, and, 
as it is given very concisely by Mr. Lodge in his his- 
tory of the colonies, I shall quote his words : 

' ' The Mohawks, armed by the Dutch, swept down from the 
north, driving the river tribes before them. The fugitives sought 
refuge in the Dutch settlement and were well received, especially 
by De Vries, who sought to give them every protection ; but the 

358 



Dutch Sources 

helpless condition of his former enemies only aroused Kieft to 
fury. Two or three of the 'twelve,' who had been dissolved, 
met and presented a petition to the governor that the Indians 
should be attacked. . . . The wretched fugitives, surprised by 
their supposed protectors, were butchered in the dead of a winter 
night without mercy ; and the bloody soldiers returned in the 
morning to Manhattan, where they were warmly welcomed by 
Kieft." (Lodge's "History of the Colonies," p. 289.) 

In fact, the Dutch rule in New York was so illiberal 
and impolitic that settlers were kept away from the 
colony, and it never flourished. It was founded about 
the same time as New England, and had greater ad- 
vantages and resources; but in 1664, when it was sur- 
rendered to the English, it had only seven thousand 
inhabitants against over a hundred thousand in New 
England. 

The last place where the Dutch influence is supposed 
to have entered was Pennsylvania ; but Mr. Campbell's 
argument on this point is scattered in many parts of his 
book. In the chapter on the Scotch-Irish he says (vol. 
ii. p. 470) that Pennsylvania and Delaware had a large 
Dutch population ; and this absolutely untrue statement 
is one of those which appear all through the work, and 
gradually give the ordinary reader an impression favor- 
able to the author's argument 

There never was a large Dutch population either in 
Delaware or in Pennsylvania. The Dutch had a few 
trading stations on the Delaware River and Bay at the 
same time that they occupied New York ; but they 
never settled the country, or even attempted to settle it. 
The Swedes came and far outnumbered the Dutch ; 
then the EngHsh came when they captured New York ; 

359 



Evolution of the Constitution 

and at the time Penn and the Quakers arrived, in 1682, 
all the Dutch, Swedes, and EngHsh Hving on the whole 
length of the river were less than three thousand. Most 
of these were Swedes and English, and the Dutch 
amounted to nothing. They established no institutions 
of any kind ; for any customs they or the Swedes had 
on the Delaware were swept out of existence by the 
English and the country put under English law. 

Besides this make-weight assertion, Mr. Campbell says 
that Penn had travelled considerably in Holland, that 
his mother was a Dutchwoman, and that the Quakers 
resembled in doctrine the Mennonites of Holland. 
Now, it is undoubtedly true that Penn had travelled 
in Holland. He had travelled, however, much more 
in Germany He and his Quakers encouraged all the 
German peace sects that resembled the Quakers in re- 
ligion to come to Pennsylvania, but none came from 
Holland except a few scattered individuals. 

A large number of Germans, however, came ; but 
they established no German form of government as part 
of the constitution of Pennsylvania, and no one has ever 
asserted that they did. This goes to show that the 
presence in a country of a large body of foreigners does 
not necessarily lead to the establishment of the institu- 
tions of the country from which the foreigners come. 

If Penn was so familiar with Holland, and if people 
always imitate the foreign country with which they are 
familiar, we should expect to find a great deal that is 
Dutch in Pennsylvania. In fact, Pennsylvania seems to 
be a much better place for Mr. Campbell to introduce 
his Netherland influence than New England. But the 

360 



Dutch Sources 

first thing that strikes us is that Penn did not intro- 
duce, nor attempt to introduce, the New England town 
system, or any system of towns Hke that in Holland. 
On the contrary, he introduced the English county sys- 
tem. In after-years the township system was partly 
introduced as the result of experience and convenience, 
so that Pennsylvania has a cross between the two, be- 
cause the nature of the land, climate, and civilization 
makes the combination the best method, as the county 
alone is the best method farther south and the town 
alone farther north. So in this important instance Penn 
and his people adopted what seemed most suited to 
their circumstances, and were not looking over the world 
for something to imitate. 

Let us go a step farther. Penn's agent in Holland 
was Benjamin Furly, an Englishman from Colchester, 
who at the age of twenty-five went to Holland and 
in the course of years became a rich and prosperous 
merchant at Rotterdam. He was a patron of letters, a 
collector of rare books, a writer of some little celebrity, 
and very much interested in the Quakers. His house 
was the resort of learned and distinguished men, and 
he was a great friend of the philosopher Locke. He 
interested himself to get German immigrants for Penn's 
colony, and Penn consulted him on all sorts of matters. 

He consulted him about the best sort of constitution 
for Pennsylvania, and prepared one which contained a 
good many Dutch ideas, no doubt suggested by Furly. 
If this constitution had been adopted it would have been 
a strong point for Mr. Campbell. But it was rejected 
and abandoned by Penn himself, and in the place of it 

361 



Evolution of the Constitution 

he prepared another which was adopted ; and this also 
he submitted to Furly. We have Furly's criticisms on 
it, complaining, in rather strong language, that Penn 
had repudiated all his Dutch suggestions, and hinting 
that no good would come of it. 

These criticisms of Furly's and the whole subject of 
his influence over Penn have been recently very care- 
fully investigated by Mr. Julius Sachse in the Pennsyl- 
vania Magazine of History (vol. xix. p. 277). Penn 
resisted and rejected the Dutch influence, and all that 
Furly could persuade him to put in his constitution was 
a clause allowing the alien Germans greater privileges 
than were accorded to them in the other colonies. 

Furly himself had an opinion about the liberality of 
Holland which is worth quoting. Among the people 
who called upon him to see his rare books and hear his 
opinions on various subjects was Zacharias von Uffen- 
bach, who has left us in his memoirs an account of the 
visit : 

' ' When I reminded him that in Holland Religious liberty- 
prevailed, he denied emphatically that this assumption was true, 
and he became quite excited over the procedure of the local magis- 
trates against the so-called English New-prophets. 

" He admitted that he not only harbored their tenets, and had 
printed their writings with a preface of his own, but had defended 
them as well before the Magistrates and endeavored to shield and 
protect them, yet notwithstanding all his efforts these innocent 
people had been expelled from the country." (Penna. Mag. of 
History, vol. xix. p. 294.) 

So, after all, there was not in Holland that absolute 
and complete religious liberty which Mr. Campbell 
would have us suppose, and which, he says, was copied 

362 



Dutch Sources 

in America. There was, no doubt, more freedom in 
Holland in this respect than in some other countries of 
Europe. They were all working at the problem, each 
in its own way. Religious liberty was gradually devel- 
oping in England, and there was a strong party there in 
its favor ; Voltaire and his friends were fighting for it in 
France ; and the Mennonites, Baptists, and other sects 
were its ardent advocates in Germany. Holland had 
rather more of it than some countries, partly because 
she found that toleration increased her population and 
commerce. 

Each country's struggle for the great principle was 
encouraged by any success it attained in other nations. 
Its success in Holland helped its success in England, 
and what was gained for it in England was an additional 
encouragement in Holland. The sects that advocated 
it in Germany had an influence on English thought, and 
in the reign of Queen Anne, England, in her turn, helped 
these struggling German sects by delivering more than 
thirty thousand of them from persecution and settling 
them in Ireland and America. 

In New York, the Dutch, as we have seen, allowed 
religious liberty to the New England Congregation alists 
because they feared them, and to the Lutherans because 
they demanded it ; but Jews, Roman Catholics, Baptists, 
and Quakers they persecuted without mercy. In Hol- 
land they granted freedom to many religions to which 
they had no objection or which they thought it was 
advisable to encourage, but against others which they 
did not like they were very severe. 

The only way by which the invention of religious 

3^3 



Evolution of the Constitution 

liberty can be traced to one source is by fixing on a 
favorite source and ignoring all the others. Religious 
liberty sprang up all over Europe as the result of the 
revival of learning, the invention of the printing-press, 
and the progress of the Reformation. There was no 
country that had not some measure of it, and in each 
country there were sects, parties, and individuals that 
had more of it and others that had less of it. Of the 
people who came from England to America, some, like 
the Massachusetts Puritans, had none of it, and others, 
like the Pennsylvania Quakers, had a great deal of it. 

Mr. Campbell's argument, that everything advanced 
and liberal that the Quakers introduced into Pennsyl- 
vania must have come from Holland, because the Hol- 
land Mennonites were similar in doctrine to the Quakers, 
is a mere assumption. The Mennonites were a sect as 
numerous in Germany as in Holland, and many of these 
German Mennonites settled in Pennsylvania by the en- 
couragement of Penn and his people, but there were very 
few Hollanders among them. The German Mennonites 
were a peace sect, like the Quakers, and extremely liberal 
in their views. They were part of a great movement 
of religious thought which spread all over the Conti- 
nent and England in the sixteenth and seventeenth cen- 
turies, producing the Quakers and Baptists in England, 
the Mennonites, Tunkers, Schwenkfelders, Pietists, and 
a host of other small sects in Germany, and similar 
sects in Holland, France, and Italy. In Italy the move- 
ment gained such ascendency under the leadership of 
Molinos, the Quietist, that it had to be stopped by the 
severest measures of the Jesuits and the Inquisition. 

364 



Dutch Sources 

It is impossible, therefore, to say that Penn and the 
Pennsylvania Quakers obtained even their religious ideas 
from Holland alone. In fact, if we start to trace their 
origin on the Continent, we shall be utterly unable to 
confine it to any one locality, except by Mr. Campbell's 
convenient method of exclusion. 

He gives instances of laws introduced by Penn which, 
he says, were copied from Holland, and among these 
the law requiring every child over the age of twelve to 
be taught a trade, the law giving one-third of the estate 
of a murderer to the next of kin of his victim, and 
the law requiring that before marriage the parents or 
guardians of the parties should be consulted. 

In the case of the law requiring every child to learn a 
trade the resemblance is very far-fetched. The law in 
Pennsylvania applied to all children, rich and poor, and 
was simply an attempt to enforce by statute a practice 
the Quakers attempted to enforce by their church dis- 
cipline, of teaching all their children some trade, no 
matter what were their circumstances in life. But the 
Holland law, as Mr. Campbell gives it, applied only to 
the children who became a charge on the public because 
their parents were too poor to support them (vol. ii. p. 
465). There is, therefore, no real resemblance ; and 
even if there was it would not avail Mr. Campbell, for 
this law was never enforced in Pennsylvania, and has 
not been adopted in the United States, and even the 
Quakers themselves soon gave up all attempts to carry 
it out by their discipline. So if this was an attempt to 
introduce a Dutch law, it signally failed. 

The law giving one-third of the estate of a murderer 

365 



Evolution of the Constitution 

to the next of kin of his victim was somewhat Hke a law 
of Holland compelling any one who caused the death of 
another, even by negligence, to pay an annuity to the 
widow and children. A lawyer would say that the two 
were by no means alike. But, waiving that, this attempt 
to introduce a Dutch law also failed. The law was not 
continued in Pennsylvania, and has not been adopted by 
the country at large. 

The law requiring that before marriage the parents 
and guardians of the parties should be consulted was 
another failure. It was abandoned in Pennsylvania, and 
is not a law of the United States. 

In our whole investigation of this subject we have 
been able to find only one custom introduced into this 
country for which there is direct and positive evidence 
of its Dutch origin. This was the custom of marriage 
before a magistrate, to the exclusion of marriage by a 
minister of religion, which, as we have shown, Bradford 
says was taken from Holland by the Pilgrim Fathers. 
It prevailed for a time in Massachusetts, but has never 
been accepted by our people. The one instance, there- 
fore, where there is positive proof of Dutch imitation 
resulted in a failure to establish the imitation, and the 
three other instances where there is slight or possible 
evidence of imitation also resulted in failure to establish. 
This comports with the general principle of my argu- 
ment in this volume, that our institutions are the growth 
of natural circumstances and conditions, and are not 
plagiarisms. Institutions or laws purely exotic or purely 
imitative usually fail. 

Mr. Campbell's extension of the Dutch influence after 

366 



Dutch Sources 

its establishment in New England, New York, and 
Pennsylvania is most interesting. Our self-governing 
States, he says, grew out of the Dutch self-governing 
towns. He seems to forget that the colonies were all 
self-governing, even those which, like Virginia, had 
no township system whatever, and after the Revolution 
each colony, both South and North, became a self-gov- 
erning State. Indeed, the vigor with which State rights 
and State sovereignty were maintained in the Southern 
States, where Mr. Campbell says there was no Dutch 
influence, would indicate that there may have been a 
Netherland influence there which he has overlooked. 

Connecticut, he says, was started by " a little detach- 
ment from Plymouth, carrying Dutch ideas. . . . Some 
of its members having doubtless lived in Holland, sailed 
up the Connecticut River and established a settlement 
at Windsor." (Vol. ii. p. 416.) Here is that ** doubt- 
less" again which he always uses when he has no evi- 
dence for an assertion. Afterwards he is able to dis- 
cover that, when other towns in Connecticut were settled, 
there was one man among them, Thomas Hooker, who 
had lived for a time in Holland. Accordingly, when 
these Connecticut people drew up their fundamental 
orders on a piece of paper it was the first American 
written constitution ; and, as the Netherland Union of 
Utrecht was in writing, it must have suggested this 
Connecticut document, which afterwards, of course, sug- 
gested the reducing to writing of the Constitution of the 
United States. 

He forgets that the Massachusetts charter, from which, 
as we have shown, these fundamental orders of Con- 

3^7 



Evolution of the Constitution 

necticut were taken, was also written on a piece of 
paper or parchment, as was every other charter creating 
an English colony in America. Whenever a form of 
government, not having grown up by custom, has to 
be put in force immediately, or, having grown up by 
custom, has to be formulated for any purpose, it is 
natural and even necessary to state it in writing. There 
is nothing wonderful about it ; and most people who 
can read and write have wit enough to do it. 

Our system of recording deeds and mortgages, which 
Mr. Campbell mentions so often as copied from Hol- 
land, might also have been copied from Egypt, where 
he admits it once prevailed. But the colonists did not 
have to go so far even as Holland to imitate it, because 
certain deeds, called deeds of bargain and sale, were 
recorded in England by the statute of Henry VIII., 
c. 1 6. Mr. Campbell seems to have been totally un- 
aware of this. It may not have been mentioned in 
Carnegie's ** Triumphant Democracy," or in the maga- 
zine articles he consulted, and he wastes pages and 
pages of rhetoric on the importance of this gift from 
Holland. 

The recording of deeds is one of those convenient 
devices which have been known from time immemorial. 
No one nation can claim the credit of its invention, es- 
pecially as it is a rather obvious method of accomplish- 
ing certain results. But some nations have adopted it, 
some have not, and some have adopted it only in part. 
The Pilgrim Fathers, who had lived in Holland, did not 
introduce it in Massachusetts ; but the Puritans, who 
had never lived in Holland, introduced it, and it was 

368 



Dutch Sources 

introduced by the English proprietors of both East Jer- 
sey and West Jersey in their frames of government. 

Along with the recording of deeds, Mr. Campbell has 
much to say about the equal inheritance of land, which, 
he insists, was introduced into this country from Hol- 
land, as opposed to the system of primogeniture which 
prevailed in England. In this matter also he wastes 
many pages of rhetoric on the dreadful evils of primo- 
geniture, which would be crippling and suffocating us 
to-day if it had not been for Holland. 

His mistake here is one which almost any law-student 
could correct. Before the Norman conquest there was 
no primogeniture in England, and land descended to 
children in equal proportions. The Normans intro- 
duced the feudal system, and with it primogeniture, 
which was absolutely essential to the military character 
of that system. The old Saxon system of equal inherit- 
ance, however, survived in the county of Kent ; and 
most of the charters which created the English colonies 
in America recited that the land should be held on the 
^ame tenure as prevailed in *'his Majesty's Manor of 
East Greenwich and County of Kent" This was done 
because the feudal land tenures and primogeniture 
would be unsuited to a wilderness country, where there 
was no aristocracy nor any of the conditions which 
supported primogeniture in England. 

In Massachusetts, where Mr. Campbell supposes the 
Dutch influence was so strong, the land was expressly 
held as '* of East Greenwich" both in the Plymouth 
colony and among the Puritans (Winthrop's " New Eng- 
land," vol. ii. p. 301; Palfrey's ** New England," p. 20); 
24 369 



Evolution of the Constitution 

and when New York was taken from the Dutch by the 
English, this same tenure of '' East Greenwich and the 
County of Kent" was introduced. 

It may be well, also, to say something of Mr. Camp- 
bell's statement that the common- or free-school system 
of New England was copied from Holland. The im- 
portance of free schools has always been obvious, and 
there were free schools in the Middle Ages. In the 
Reformation they were recommended in several coun- 
tries of Europe. Luther advocated them, and, with 
Melanchthon, drew up the Saxon school system. They 
were gradually developed in Germany up to 1618 ; 
several German states had compulsor>^ education laws, 
and John Knox had urged their adoption in Scotland 
in 1560. 

In New England they were a gradual native growth. 
The first schools were not free, but were kept up by the 
people as best they could from contributions and pay- 
ments for tuition. Even the famous law which directed 
each township of fifty householders to have a school- 
teacher provided that his ''wages shall be paid by the 
parents or masters of such children, or by the inhab- 
itants in general by way of a supply." The Puritans 
finally worked out a general free-school system because 
they were enthusiastic believers in education and learn- 
ing, and their religion was of a sort that required much 
erudition and intellectual keenness. They established 
the free schools in the same spirit which led them 
to establish Harvard College. But if we are looking 
for the first free school in America we shall find it in 
1 62 1 at Charles City, Virginia, — a part of the country 

370 



Dutch Sources 

which Mr. Campbell assures us was entirely free from 
Dutch influence. 

It would be useless to follow up all his extraordinary 
statements of the effect of Dutch influence. They are 
simply the ingenuity of a brilliant mind carried away 
by a mere theory. But I shall call attention to one or 
two points where he has attempted to show Dutch imi- 
tation in the development of the Federal government. 
Finding that in the States-General of the Netherlands 
each province had only one vote, and that when the 
Continental Congress assembled at the outbreak of the 
Revolution each colony had only one vote, he says that 
one was imitated from the other. 

This question whether the colonies should each be 
represented according to its population, or whether each 
should have only one vote in any union that was formed, 
was, as we have shown in previous chapters, an old 
problem that had been discussed in the plans of union 
proposed previous to the Revolution and solved in dif- 
ferent ways. The general opinion seems to have leaned 
in favor of representation in proportion to population, 
but every one felt that the statistics of population were 
so inaccurate that it would be unsafe to adopt this plan. 
When the Continental Congress first assembled in Phila- 
delphia, in September, 1774, the subject was debated, 
and John Adams gives the debate in his diary, with the 
speeches of the different members. (Adams's Works, 
vol. ii. p. 366.) 

In the whole of this debate there is not a word about 
the Netherlands. On the contrary, the general feeling 
was evidently in favor of representation by population, 

371 



Evolution of the Constitution 

but it was thought impracticable to adopt it without 
more accurate information. A resolution was finally- 
passed which gives the reason for allowing each colony 
only a single vote, and it is certainly not Dutch : 

' ' That in determining questions in this Congress each colony 
or province shall have one vote ; the Congress not being pos- 
sessed of, or at present able to procure proper materials for ascer- 
taining the importance of each colony." ("Journals of Conti- 
nental Congress," vol. i. p. lo.) 

If there is anything in the Articles of Confederation or 
the Constitution that was imitated from the Netherlands, 
the debates would surely disclose it, and also the pam- 
phlets that were published criticising the Constitution 
when it was before the people for adoption. Mr. Camp- 
bell makes no quotations from any of these original 
authorities to support his assertions. He relies entirely 
on possibilities and presumptions. I have accordingly 
examined the debates and pamphlets, to see if there 
was anything that would support him. I find that the 
Netherlands are often referred to, and also Rome, 
Greece, Denmark, Poland, Germany, Spain, England, 
and Switzerland. The general tone is not one of imi- 
tation, but rather of dislike and contempt for all Eu- 
ropean institutions, and I can find nothing that recom- 
mends plagiarism. 

"Dr. Rush took notice that the decay of the liberties of the 
Dutch Republic proceeded from three causes : i. The perfect 
unanimity requisite on all occasions. 2. Their obligations to 
consult their constituents. 3. Their voting by provinces. This 
last destroyed the equality of representation, and the liberties of 
Great Britain, also, are sinking from the same defect." (Elliot's 
Debates, vol. i. p. "j^j.^ 

372 



Dutch Sources 

Voting by states or provinces was by no means a dis- 
covery of the Dutch. Hopkins, who followed Dr. Rush, 
reminded his hearers that voting by states was practised 
in Germany and Switzerland as well as in Holland. If 
the voting by colonies in the Articles of Confederation 
was an imitation, from which country was it imitated ? 
Wilson, the next member to speak, said, — 

' ' The Germanic body is a burlesque on government, and their 
practice on any point is a sufficient authority and proof that it is 
wrong. The greatest imperfection in the constitution of the 
Belgic confederacy is their voting by provinces." (Elliot's De- 
bates, vol. i. p. 78.) 

' ' Mr. Wilson urged the necessity of two branches ; observed 
that if a proper model was not to be found in other confederacies 
it was not to be wondered at. The number of them was small 
and the duration of some at least short. The Amphictyonic and 
Achaean were formed in the infancy of political science and appear 
by their history and fate to have contained radical defects. The 
Swiss and Belgic confederacies were held together not by any 
vital principle of energy, but by the incumbent pressure of for- 
midable neighboring nations. The German owed its continuance 
to the influence of the house of Austria. He appealed to our 
own experience for the defects of our confederacy." (Elliot's 
Debates, Supplement, vol. v. p. 219.) 

Mr. Pinckney. " The people of this country are not only very 
different from the inhabitants of any state we are acquainted with 
in the modern world, but I assert that their situation is distinct 
from either the people of Greece or Rome, or of any states we are 
acquainted with among the ancients. Can the orders introduced 
by the institutions of Solon, can they be found in the United 
States ? Can the military habits and manners of Sparta be re- 
sembled to ours in habits and manners ? Are the distinctions of 
patrician and plebeian known among us ? Can the Helvic or 
Belgic confederacies, or can the unwieldy, unmeaning body 

313 



Evolution of the Constitution 

called the Germanic empire, can they be said to possess the same, 
or a situation like ours ?" (/^., p. 236.) 

Mr. Madison. ' ' What is the state of things in the lax system 
of the Dutch confederacy ? Holland contains about half the peo- 
ple, supplies about half the money, and, by her influence, silently 
and indirectly governs the whole republic." {Id., p. 252.) 

Mr. Gouverneur Morris. ' ' The United Netherlands are at 
this time torn in factions. With these examples before our eyes 
shall we form establishments which must necessarily produce the 
same effects?" {Id., p. 287.) 

When the Constitution was referred to the people for 
adoption, it was thought so unlike anything in Holland 
or in any other country of Europe that some of its en- 
emies complained of it. There is an interesting passage 
on this point in an able pamphlet of the time : 

"The enemies of the proposed constitution have deemed it 
material to show that such a one never existed before. It does 
not, indeed, agree with definitions in books taken from the Am- 
phictyonic Council, the United Netherlands, or the Helvic Body. 
They would, therefore, infer that it is wrong. This mode of rea- 
soning deserves not a serious refutation. The convention exam- 
ined those several constitutions, if such they can be called. It 
found them either woefully defective as to their own particular 
object or inapplicable to ours. Peradventure our own Articles of 
Confederation in theory appear more perfect than any of them," 
(" Remarks on the Proposed Plan of a Federal Government," 
by Aristides, p, 13.) 



374 



APPENDIX 

Constitution of the United States 

We the People of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquihty, pro- 
vide for the common defence, promote the general Welfare, and 
secure the Blessings of Liberty to ourselves and our Posterity, do 
ordain and establish this Constitution for the United States of 
America. 

ARTICLE L 

Section i. All legislative Powers herein granted shall be 
vested in a Congress of the United States, which shall consist of 
a Senate and House of Representatives. 

Section 2. The House of Representatives shall be composed 
of Members chosen every second Year by the People of the sev- 
eral States, and the Electors in each State shall have the Qualifi- 
cations requisite for Electors of the most numerous Branch of the 
State Legislature. 

No Person shall be a Representative who shall not have at- 
tained to the Age of twenty-five Years, and been seven Years a 
Citizen of the United States, and who shall not, when elected, be 
an Inhabitant of that State in which he shall be chosen. 

[Representatives and direct Taxes shall be apportioned among 
the several States which may be included within this Union, ac- 
cording to their respective Numbers, which shall be determined 
by adding to the whole Number of Free persons, including those 
bound to Service for a Term of Years, and excluding Indians not 
taxed, three fifths of all other Persons.]^ The actual Enumera- 
tion shall be made within three Years after the first Meeting of 

*The clause included within brackets has been altered by the Four- 
teenth Amendment, section 2. 

375 



Evolution of the Constitution 

the Congress of the United States, and within every subsequent 
Term of ten Years, in such Manner as they shall by Law direct. 
The Number of Representatives shall not exceed one for every 
thirty Thousand, but each State shall have at Least one Repre- 
sentative ; and until such enumeration shall be made, the State 
of New Hampshire shall be entitled to chuse three, Massachusetts 
eight, Rhode Island and Providence Plantations one, Connecticut 
five, New York six. New Jersey four, Pennsylvania eight, Dela- 
ware one, Maryland six, Virginia ten, North Carolina five, South 
Carolina five, and Georgia three. 

When vacancies happen in the Representation from any State, 
the Executive Authority thereof shall issue Writs of Election to 
fill such Vacancies. 

The House of Representatives shall chuse their Speaker and 
other Officers ; and shall have the sole Power of Impeachment. 

Section 3. The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legislature there- 
of, for six Years ; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of 
the first Election, they shall be divided as equally as may be into 
three Classes. The seats of the Senators of the first Class shall 
be vacated at the Expiration of the second year, of the second 
Class at the Expiration of the fourth Year, and of the third Class 
at the Expiration of the sixth Year, so that one-third may be 
chosen every second Year ; and if Vacancies happen by Resig- 
nation, or otherwise, during the Recess of the Legislature of any 
State, the Executive thereof may make temporary Appointments 
until the next Meeting of the Legislature, which shall then fill 
such Vacancies. 

No Person shall be a Senator who shall not have attained to 
the Age of thirty Years, and been nine Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant 
of that State for which he shall be chosen. 

The Vice President of the United States shall be President of 
the Senate, but shall have no Vote, unless they be equally 
divided. 

The Senate shall chuse their other Officers, and also a Presi- 

376 



Appendix 

dent pro tempore, in the Absence of the Vice President, or when 
he shall exercise the Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirma- 
tion. When the President of the United States is tried, the Chief 
Justice shall preside : and no Person shall be convicted without 
the Concurrence of two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and disqualification to hold and en- 
joy any Office of honor. Trust or Profit under the United States : 
but the Party convicted shall nevertheless be liable and subject 
to Indictment, Trial, Judgment and Punishment, according to 
Law. 

Section 4. The Times, Places and manner of holding Elec- 
tions for Senators and Representatives, shall be prescribed in 
each State by the Legislature thereof ; but the Congress may at 
any time by Law make or alter such Regulations, except as to 
the Places of chusing Senators. 

The Congress shall assemble at least once in every Year, and 
such Meeting shall be on the first Monday in December, unless 
they shall by Law appoint a different Day. 

Section 5. Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, and a Majority 
of each shall constitute a Quorum to do Business ; but a smaller 
Number may adjourn from day to day, and may be authorized 
to compel the Attendance of absent Members, in such Manner, 
and under such Penalties as each House may provide. 

Each House may determine the Rules of its Proceedings, pun- 
ish its Members for disorderly Behaviour, and, with the Concur- 
rence of two thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and from 
time to time publish the same, excepting such Parts as may in 
their Judgment require Secrecy ; and the Yeas and Nays of the 
Members of either House on any question shall, at the Desire of 
one fifth of those present, be entered on the Journal. 

Neither House, during the Session of Congress, shall, without 
the Consent of the other, adjourn for more than three days, nor 

377 



Evolution of the Constitution 

to any other Place than that in which the two Houses shall be 
sitting. 

Section 6. The Senators and Representatives shall receive a 
Compensation for their services, to be ascertained by Law, and 
paid out of the Treasury of the United States. They shall in all 
Cases, except Treason, Felony and Breach of the Peace, be privi- 
leged from Arrest during their Attendance at the Session of their 
respective Houses, and in going to and returning from the same ; 
and for any Speech or Debate in either House, they shall not be 
questioned in any other Place. 

No Senator or Representative shall, during the Time for which 
he was elected, be appointed to any civil Office under the Au- 
thority of the United States, which shall have been created, or the 
Emoluments whereof shall have been encreased during such time ; 
and no Person holding any Office under the United States, shall 
be a Member of either House during his Continuance in Office. 

Section 7. All bills for raising Revenue shall originate in the 
House of Representatives ; but the Senate may propose or concur 
with Amendments as on other Bills. 

Every Bill which shall have passed the House of Represen- 
tatives and the Senate, shall, before it become a Law, be pre- 
sented to the President of the United States ; if he approve he 
shall sign it, but if not he shall return it, with his Objections to 
that House in which it shall have originated, who shall enter the 
Objections at large on their Journal, and proceed to reconsider it. 
If after such Reconsideration two thirds of that House shall agree 
to pass the Bill, it shall be sent, together with the Objections, to 
the other House, by which it shall likewise be reconsidered, and 
if approved by two-thirds of that House, it shall become a Law. 
But in all such Cases the Votes .of both Houses shall be deter- 
mined by yeas and Nays, and the Names of the Persons voting for 
and against the Bill shall be entered on the Journal of each House 
respectively. If any Bill shall not be returned by the President 
within ten Days (Sundays excepted) after it shall have been pre- 
sented to him, the Same shall be a Law, in like Manner as if he 
had signed it, unless the Congress by their Adjournment prevent 
its Return, in which Case it shall not be a Law. 



Appendix 

Every Order, Resolution, or Vote to which the Concurrence of 
the Senate and House of Representatives may be necessary (ex- 
cept on a question of Adjournment) shall be presented to the 
President of the United States ; and before the Same shall take 
Effect, shall be approved by him, or being disapproved by him, 
shall be repassed by two thirds of the Senate and House of Rep- 
resentatives, according to the Rules and Limitations prescribed 
in the Case of a Bill. 

Section 8. The Congress shall have Power to lay and collect 
Taxes, Duties, Imposts and Excises, to pay the Debts and pro- 
vide for the common Defence and general Welfare of the United 
States ; but all Duties, Imposts and Excises shall be uniform 
throughout the United States ; 

To borrow Money on the credit of the United States ; 

To regulate Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes ; 

To establish an uniform Rule of Naturalization, and uniform 
Laws on the subject of Bankruptcies throughout the United 
States ; 

To coin Money, regulate the Value thereof, and of foreign Coin, 
and fix the Standard of Weights and Measures ; 

To provide for the Punishriient of counterfeiting the Securities 
and current Coin of the United States ; 

To establish Post Offices and post Roads ; 

To promote the Progress of Science and useful Arts, by se- 
curing for limited Times to Authors and Inventors the exclusive 
Right to their respective Writings and Discoveries ; 

To constitute Tribunals inferior to the supreme Court ; 

To define and punish Piracies and Felonies committed on the 
high Seas, and Offences against the Law of Nations ; 

To declare War, grant Letters of Marque and Reprisal, and 
make Rules concerning Captures on Land and Water ; 

To raise and support Armies, but no Appropriation of Money 
to that Use shall be for a longer Term than two Years ; 

To provide and maintain a Navy ; 

To make Rules for the Government and Regulation of the land 
and naval Forces ; 

379 



Evolution of the Constitution 

To provide for calling forth the Militia to execute the Laws of 
the Union, suppress Insurrections and repel Invasions ; 

To provide for organizing, arming, and disciplining, the Militia, 
and for governing such Part of them as may be employed in the 
Service of the United States, reserving to the States respectively, 
the Appointment of the Officers, and the Authority of training the 
Militia according to the discipline prescribed by Congress ; 

To exercise exclusive Legislation in all Cases whatsoever, over 
such District (not exceeding ten Miles square) as may, by Ces- 
sion of particular States, and the Acceptance of Congress, become 
the Seat of the Government of the United States, and to exercise 
like Authority over all Places purchased by the Consent of the 
Legislature of the State in which the Same shall be, for the Erec- 
tion of Forts, Magazines, Arsenals, dock- Yards, and other need- 
ful Buildings ; — And 

To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other 
Powers vested by this Constitution in the Government of the 
United States, or in any Department or Officer thereof. 

Section 9. The Migration or Importation of such Persons as 
any of the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the Year one thousand 
eight hundred and eight, but a Tax or duty may be imposed on 
such Importation, not exceeding ten dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when in Cases of Rebellion or Invasion the public 
Safety may require it. 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, tax shall be laid, unless in Pro- 
portion to the Census or Enumeration herein before directed to 
be taken. 

No Tax or Duty shall be laid on Articles exported from any 
State. 

No Preference shall be given by any Regulation of Commerce 
or Revenue to the Ports of one State over those of another : nor 
shall Vessels bound to, or from, one State, be obliged to enter, 
clear, or pay Duties in another. 

380 



Appendix 

No Money shall be drawn from the Treasury, but in Conse- 
quence of Appropriations made by Law ; and a regular Statement 
and Account of the Receipts and Expenditures of all public 
Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States : 
And no Person holding any Office of Profit or Trust under them, 
shall, without the Consent of the Congress, accept of any present, 
Emolument, Office, or Title, of any kind whatever, from any 
King, Prince, or foreign State. 

Section io. No State shall enter into any Treaty, Alliance, 
or Confederation ; grant Letters of Marque and Reprisal ; coin 
Money ; emit Bills of Credit ; make any Thing but gold and 
silver Coin a Tender in Payment of Debts ; pass any Bill of 
Attainder, ex post facto Law, or Law impairing the Obligation 
of Contracts, or grant any Title of Nobility. 

No State shall, without the Consent of the Congress, lay any 
Imposts or Duties on Imports or Exports, except what may be 
absolutely necessary for executing it's inspection Laws : and the 
net Produce of all Duties and Imposts, laid by any State on Im- 
ports or Exports, shall be for the Use of the Treasury of the 
United States ; and all such Laws shall be subject to the Revision 
and Controul of the Congress. 

No State shall, without the Consent of Congress, lay any Duty 
of Tonnage, keep Troops, or Ships of War in time of Peace, enter 
into any Agreement or Compact with another State, or with a 
foreign Power, or engage in War, unless actually invaded, or in 
such imminent Danger as will not admit of delay. 

ARTICLE II. 

Section i . The executive Power shall be vested in a President 
of the United States of America. He shall hold his Office during 
the Term of four Years, and, together with the Vice President, 
chosen for the same Term, be elected, as follows 

Each State shall appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which the State may 
be entitled in the Congress : but no Senator or Representative, 

381 



Evolution of the Constitution 

or Person holding an Office of Trust or Profit under the United 
States, shall be appointed an Elector. 

[The electors shall meet in their respective States, and vote by- 
ballot for two persons, of whom one at least shall not be an in- 
habitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and certify, and trans- 
mit sealed to the seat of the Government of the United States, 
directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Repre- 
sentatives, open all the certificates, and the votes shall then be 
counted. The person having the greatest number of votes shall 
be the President, if such number be a majority of the whole 
number of electors appointed ; and if there be more than one 
who have such majority, and have an equal number of votes, 
then the House of Representatives shall immediately chuse by 
ballot one of them for President ; and if no person have a ma- 
jority, then from the five highest on the hst the said House shall 
in like manner chuse the President. But in chusing the Presi- 
dent, the votes shall be taken by States, the representation from 
each State having one vote ; a quorum for this purpose shall con- 
sist of a member or members from two-thirds of the States, and a 
majority of all the States shall be necessary to a choice. In every 
case, after the choice of the President, the person having the 
greatest number of votes of the electors shall be the Vice Presi- 
dent. But if there should remain two or more who have equal votes, 
the Senate shall chuse from them by ballot the Vice President.]^ 

The Congress may determine the Time of chusing the Electors, 
and the Day on which they shall give their Votes ; which Day 
shall be the same throughout the United States. 

No person except a natural born Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitution, 
shall be eligible to the Office of President ; neither shall any Per- 
son be eligible to that office who shall not have attained to the 

*The clause included within brackets has been superseded by the 
Twelfth Amendment. 

382 



Appendix 



Age of thirty five Years, and been fourteen Years a Resident 
within the United States. 

In Case of the Removal of the President from Office, or of his 
Death, Resignation or Inabihty to discharge the Powers and 
Duties of the said Office, the Same shall devolve on the Vice 
President, and the Congress may by Law provide for the Case of 
Removal, Death, Resignation or Inability, both of the President 
and Vice President, declaring what Officer shall then act as Presi- 
dent, and such Officer shall act accordingly, until the Disability 
be removed, or a President shall be elected. 

The President shall, at stated Times, receive for his Services, 
a Compensation, which shall neither be encreased nor dimin- 
ished during the Period for which he shall have been elected, 
and he shall not receive within that Period any other Emolument 
from the United States, or any of them. 

Before he enter on the Execution of his Office, he shall take 
the following Oath or Affirmation: — "I do solemnly swear (or 
affirm) that I will faithfully execute the Office of President of the 
United States, and will to the best of my Ability, preserve, pro- 
tect and defend the Constitution of the United States." 

Section 2. The President shall be Commander in Chief of the 
Army and Navy of the United States, and of the Milida of the 
several States, when called into the actual Service of the United 
States ; he may require the Opinion, in writing, of the principal 
Officer in each of the executive Departments, upon any Subject 
relating to the Duties of their respective Offices, and he shall have 
Power to grant Reprieves and Pardons for Offences against the 
United States, except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent of 
the Senate, to make Treaties, provided two thirds of the Senators 
present concur ; and he shall nominate, and by and with the 
Advice and Consent of the Senate, shall appoint Ambassadors, 
other public Ministers and Consuls, Judges of the supreme Court, 
and all other Officers of the United States, whose Appointments 
are not herein otherwise provided for, and which shall be estab- 
lished by Law : but the Congress may by Law vest the Appoint- 

3^3 



Evolution of the Constitution 

ment of such inferior Officers, as they think proper, in the Presi- 
dent alone, in the Courts of Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies that 
may happen during the recess of the Senate, by granting Com- 
missions which shall expire at the End of their next Session. 

Section 3. He shall from time to time give to the Congress 
Information of the state of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and 
expedient ; he may, on extraordinary Occasions, convene both 
Houses, or either of them, and, in Case of Disagreement between 
them, with Respect to the Time of Adjournment, he may adjourn 
them to such Time as he shall think proper ; he shall receive 
Ambassadors and other public Ministers ; he shall take Care that 
the Laws be faithfully executed, and sh^-ll Commission all the 
Officers of the United States. 

Section 4. The President, Vice President and all civil Officers 
of the United States, shall be removed from Office on Impeach- 
ment for, and Conviction of. Treason, Bribery, or other high 
Crimes and Misdemeanors. 

ARTICLE III. 

Section i. The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish. The 
Judges, both of the supreme and inferior Courts, shall hold their 
Offices during good Behaviour, and shall, at stated Times, re- 
ceive for their Services, a Compensation, which shall not be di- 
minished during their Continuance in Office. 

Section 2. The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the Laws of the 
United States, and Treaties made, or which shall be made, under 
their Authority ; — to all Cases affecting Ambassadors, other pub- 
lic Ministers and Consuls ; — to all Cases of admiralty and mari- 
time Jurisdiction ; — to Controversies to which the United States 
shall be a Party ; — to Controversies between two or more States ; 
— ^between a State and Citizens of another State ; — between Citi- 

384 



Appendix 

zens of different States, — ^between Citizens of the same State claim- 
ing Lands under Grants of different States, and between a State, 
or the Citizens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be Party, the supreme 
Court shall have original Jurisdiction. In all the other Cases 
before mentioned, the supreme Court shall have appellate Juris- 
diction, both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment, shall 
be by Jury ; and such Trial shall be held in the State where the 
said Crimes shall have been committed ; but when not committed 
within any State, the Trial shall be at such Place or Places as the 
Congress may by Law have directed. 

Section 3. Treason against the United States, shall consist 
only in levying War against them, or in adhering to their Ene- 
mies, giving them Aid and Comfort. No Person shall be con- 
victed of Treason unless on the Testimony of two Witnesses to 
the same overt Act, or on Confession in open Court. 

The Congress shall have Power to declare the Punishment of 
Treason, but no Attainder of Treason shall work Corruption of 
Blood, or Forfeiture except during the Life of the Person attainted. 

ARTICLE IV. 

Section i. Full Faith and Credit shall be given in each State 
to the public Acts, Records, and judicial Proceedings of every 
other State. And the Congress may by general Laws prescribe 
the Manner in which such Acts, Records and Proceedings shall be 
proved, and the Effect thereof. 

Section 2. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States. 

A person charged in any State with Treason, Felony, or other 
Crime, who shall flee from Justice, and be found in another State, 
shall on Demand of the executive Authority of the State from 
which he fled, be delivered up to be removed to the State having 
Jurisdiction of the Crime. 

25 385 



Evolution of the Constitution 

No Person held to Service or Labour in one State, under the 
Laws thereof, escaping into another, shall, in Consequence of any 
Law or Regulation therein, be discharged from such Service or 
Labour, but shall be delivered up on Claim of the Party to whom 
such Service or Labour may be due. 

Section 3. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within 
the Jurisdiction of any othdr State ; nor any State be formed by 
the Junction of two or more States, or Parts of States, without the 
Consent of the Legislatures of the States concerned as well as of 
the Congress. 

The Congress shall have Power to dispose of and make all 
needful Rules and Regulations respecting the Territory or other 
Property belonging to the United States ; and nothing in this 
Constitution shall be so construed as to Prejudice any Claims of 
the United States, or of any particular State. 

Section 4. The United States shall guarantee to every State 
in this Union a Republican Form of Government, and shall pro- 
tect each of them against Invasion ; and on Application of the 
Legislature, or of the Executive (when the Legislature cannot be 
convened) against domestic Violence. 

ARTICLE V. 

The Congress, whenever two thirds of both Houses shall deem 
it necessary, shall propose Amendments to this Constitution, or, 
on the Application of the Legislatures of two thirds of the several 
States, shall call a Convention for proposing Amendments, which, 
in either Case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, when ratified by the Legislatures of three 
fourths of the several States, or by Conventions in three fourths 
thereof, as the one or the other Mode of Ratification may be pro- 
posed by the Congress ; Provided that no Amendment which 
may be made prior to the Year One thousand eight hundred and 
eight shall in any Manner affect the first and fourth Clauses 
in the Ninth Section of the first Article ; and that no State, 
without its Consent, shall be deprived of its equal Suffrage in the 
Senate. 

386 



Appendix 



ARTICLE VI. 

All Debts contracted and Engagements entered into, before 
the Adoption of this Constitution, shall be as valid against the 
United States under this Constitution, as under the Confederation. 

This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or 
which shall be made, under the Authority of the United States, 
shall be the supreme Law of the Land ; and the Judges in every 
State shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive and 
judicial Officers, both of the United States and of the several 
States, shall be bound by Oath or Affirmation, to support this 
Constitution ; but no religious Test shall ever be required as a 
Qualification to any Office or public Trust under the United States. 

ARTICLE VII. 
The ratification of the Conventions of nine States, shall be suffi- 
cient for the Establishment of this Constitution between the States 
so ratifying the Same. 

Done in Convention by the Unanimous Consent of the States 
present the Seventeenth Day of September in the Year of our 
Lord one thousand seven hundred and Eighty seven, and of 
the Independance of the United States of America the Twelfth 
Hn Witncdd whereof We have hereunto subscribed our Names, 

Go; WASHINGTON— 
Presidt. and Deputy from Virginia 

New Hampshire. 
John Langdon, Nicholas Oilman. 

Massachusetts. 
Nathaniel Gorham, Rufus King. 

Connecticut. 
Wm. Saml. Johnson, Roger Sherman. 

387 



Evolution of the Constitution 



Alaxander Hamilton. 

Wil: Livingston, 
David Brearley, 

B. Franklin, 
Thomas Mifflin, 
RoBT. Morris, 
Geo. Clymer, 



New York. 
New Jersey. 

Pennsylvania. 



Delaware. 



Geo. Read, 

Gunning Bedford, Jun., 

John Dickinson, 

Maryland. 
James McHenry, 
Dan. Jenifer, of St. Thomas, 



John Blair, 



Wm. Paterson, 
JONA. Dayton. 

Thos. Fitzsimons, 
Jared Ingersoll, 
James Wilson, 
Gouv. Morris. 

Richard Bassett, 
Jaco : Broom. 



Virginia. 
North Carolina. 



Wm. Blount, 

Rich'd Dobbs Speight, 



Dan. Carroll. 

James Madison, Jr. 
Hugh Williamson. 



South Carolina. 
J. RuTLEDGE, Charles Pinckney, 

Charles Cotesworth Pinckney, Pierce Butler. 



William Few, 
Attest : 



Georgia. 

Abr. Baldwin. 

WILLIAM JACKSON, Secretary. 



388 



Appendix 
Amendments 

ARTICLE I. 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof ; or abridging the 
freedom of speech, or of the press ; or the right of the people 
peaceably to assemble, and to petition the Government for a 
redress of grievances. 

ARTICLE II. 

A well-regulated Militia, being necessary to the security of a 
free State, the right of the people to keep and bear Arms, shall 
not be infringed. 

ARTICLE III. 

No Soldier shall, in time of peace, be quartered in any house, 
without the consent of the Owner, nor in time of war, but in a 
manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no Warrants shall issue, but upon 
probable cause, supported by Oath or affirmation, and particularly 
describing the place to be searched, and the persons or things to 
be seized. 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or public danger ; 
nor shall any person be subject for the same offence to be twice 
put in jeopardy of life or limb ; nor shall be compelled in any 
Criminal Case to be a witness against himself, nor be deprived 
of hfe, liberty, or property, without due process of law ; nor shall 
private property be taken for pubhc use, without just compensa- 
tion. 

389 



Evolution of the Constitution 

ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed ; which 
district shall have been previously ascertained by law, and to 
be informed of the nature and cause of the accusation ; to be 
confronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favor, and to have the 
Assistance of Counsel for his defence. 

ARTICLE VIL 
In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
Court of the United States, than according to the rules of the 
common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

ARTICLE IX. 
The enumeration in the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the 
people. 

ARTICLE X. 
The powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. 

ARTICLE XI. 

The Judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by Citizens of another State, or 
by Citizens or Subjects of any Foreign State. 

390 



Appendix 

ARTICLE XII. 

The Electors shall meet in their respective states, and vote by 
ballot for President and Vice-President, one of whom, at least, 
shall not be an inhabitant of the same State with themselves ; 
they shall name in their ballots the person voted for as President, 
and in distinct ballots the person voted for as Vice-President, and 
they shall make distinct lists of all persons voted for as President, 
and of all persons voted for as Vice-President, and of the number 
of votes for each, which lists they shall sign and certify, and 
transmit sealed to the seat of the Government of the United States, 
directed to the President of the Senate ; — The President of the 
Senate shall, in the presence of the Senate and House of Repre- 
sentatives, open all the certificates and the votes shall then be 
counted ; — The person having the greatest number of votes for 
President, shall be the President, if such number be a majority 
of the whole number of Electors appointed ; and if no person 
have such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose immediately, 
by ballot, the President. But in choosing the President, the votes 
shall be taken by states, the representation from each state having 
one vote ; a quorum for this purpose shall consist of a member 
or members from two-thirds of the states, and a majority of all 
the states shall be necessary to a choice. And if the House of 
Representatives shall not choose a President whenever the right 
of choice shall devolve upon them, before the fourth day of March 
next following, then the Vice-President shall act as President, as 
in the case of the death or other constitutional disability of the 
President. The person having the greatest number of votes as 
Vice-President, shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed, and if no 
person have a majority, then from the two highest numbers on 
the list, the Senate shall choose the Vice-President ; a quorum 
for the purpose shall consist of two-thirds of the whole number 
of Senators, and a majority of the whole number shall be neces- 
sary to a choice. But no person constitutionally ineligible to the 

391 



Evolution of the Constitution 

office of President shall be eligible to that of Vice-President of 
the United States. 

ARTICLE XIII. 

Section i. Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place sub- 
ject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article 
by appropriate legislation. 

ARTICLE XIV. 

Section i. All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privileges or immuni- 
ties of citizens of the United States ; nor shall any State deprive 
any person of life, liberty, or property, without due process of 
law ; nor deny to any person within its jurisdiction the equal pro- 
tection of the laws. 

Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians not 
taxed. But when the right to vote at any election for the choice 
of electors for President and Vice-President of the United States, 
Representatives in Congress, the Executive and Judicial officers 
of a State, or the members of the Legislature thereof, is denied 
to any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other crime, the 
basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in 
Congress, or elector of President and Vice-President, or hold any 
office, civil or military, under the United States, or under any 
State, who, having previously taken an oath, as a member of 
Congress, or as an officer of the United States, or as a member 

392 



Appendix 

of any State Legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof. But Congress may 
by a vote of two-thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pen- 
sions and bounties for services in suppressing insurrection or re- 
bellion, shall not be questioned. But neither the United States 
nor any State shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United States, or 
any claim for the loss or emancipation of any slave ; but all such 
debts, obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 

ARTICLE XV. 

Section i. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this 
article by appropriate legislation. 



393 



Index 



Absolutism, 105. 
Adjournment, 65, 98, 99, 135. 
Ambassador, 96, 295. 
Amendment, 61, 78, 176, 265, 31 1. 
Andros, Sir Edmund, 222. 
Appointing power, 64, 78, 98, 171. 
Apportionment of Congress, 100. 
Arms, right to bear, 208. 
Army, 96, 299. 
Arrest, privilege from, 132. 
Attainder of treason, 210. 

Bail, 205. 

Bankruptcy, 3 1 1. 

Bellomont, Earl of, 228. 

Bill of rights, 54, 

Blackstone, Commentaries of, 94. 

Borrow money, power to, 297. 

Boundary disputes, 241. 

Bradford, 330. 

Bryce, 12, 94. 

Campbell, on origin of institutions, 

13, 19, 315- 
Captures, 294. 
Carolinas, 41, 51- 
Carson, Hampton L., 217. 
Censors, council of, 80. 
Census, 267, 273. 
College, the, of Philadelphia, 262. 
Columbia, District of, 310. 
Commander-in-chief, 158, 226. 
Commerce, regulation of, 99, 225, 

293, 311- 



Confederation, Articles of, 242, 

Congress, control of, by president, 
99 ; general powers of, 275 ; pre- 
siding officer of, 276 ; restric- 
tions on, 277. 

Connecticut, Fundamental Orders 
of, 41 ; charter of, 24, 44 ; Dutch 
influence in, 367. 

Constitution, sources of the, 19 ; 
great age of, 22. 

Constitutions, native, 23; of 1776, 
23, 25, 70. 

Continental Congress, 238. 

Contracts, obligation of, 262. 

Controversies between states, 305. 

Convention, the, of 1787, 255. 

Corporations, use of, in America, 
119. 

Council for Foreign Plantations, 
222, 

Council, the, for New England, 

339. 
County, the, in Virginia, 337. 
Coxe, Brinton, 185. 

Debate, freedom of, 130. 
Debts under Confederation, 310. 
Deeds, recording of, 319, 368. 
Departments, confusion of, 34, 38, 

64 ; separate, 109. 
Domestic violence in a state, 310. 
Drayton, William Henry, 250. 
Du Chaillu, 14. 
Dudley, Governor, 346. 



395 



Index 



Duke of York, grants to, 41. 

Dutch, in New York, 352, 354, 
359; in New England, 353; 
their ideas of religious liberty, 
357 ; in Pennsylvania, 359, 365. 

East India Company, 93, 

East Jersey, Concessions of, 48, 

50- 
Elections, manner of holding, 311. 

Electors of the president, 83, 153. 

Embargoes, 78. 

Eminent domain, 214. 

English sources of the constitution, 

90. 
Excessive bail and fines, 205. 
Execution of the laws, 60, 98, 150, 

156, 158. 
Executive, 80, 94, 242, 246, 248. 
Expenditure of public money, 314. 
Export duties, 311. 
Ex post facto laws, 82, 210. 

Federal power, 249, 251. 
Federalism, 215, 217, 219. 
Fines, 205. 

Foster, on the Constitution, 13. 
Franklin, Benjamin, his plans of 

union, 231, 238, 240. 
Free schools, 324. 
Freedom of debate, 130. 
Freedom of the press, 206. 
Furly, Benjamin, 361. 

Galloway, Joseph, 238. 
Georgia, charter of, 68, 70. 
German origin of New England 

towns, 13. 
Gladstone, ii. 
Grocers' Company, 28. 



Habeas corpus, 212. 

Hamilton, his plan of union, 261. 

House of representatives, 117. 

Hue and cry, 220. 

Hutchinson, his plan of union, 235. 

Impeachment, 59, 78, 86, 147. 
Inconsistent offices, 103. 
Indians, origin of, 14. 
Indians, treatment of, by the Dutch, 

358. 
Intercourse among the colonies, 

220, 221, 225, 245, 290. 
Inventions, 188. ' 

Jeopardy, twice in, 205. 

Johnson, Dr. Samuel, his plan of 

union, 236. 
Judiciary, the, 174, 295. 
Jury, trial by, 201. 

Keith, Sir William, 231. 
Kid, Social Evolution, 22. 

Liberty, religious, 190. 
Locke, John, 51. 
Lords of Trade, 222. 

Madoc, the Welsh prince, 14. 

Marque, letters of, 96, 309. 

Martial law, 212. 

Maryland, charter of, 40 ; constitu- 
tion of, 81. 

Massachusetts, constitutional expe- 
rience of, 20, 25 ; first charter 
of, 37 ; second charter of, 62 ; 
rejected constitution of, 86 ; sec- 
ond constitution of, 88. 

Mayflower, agreement on board of, 
35. 



396 



Index 



Measures, standard of, 298. 
Meigs, William M,, 185. 
Mennonites, the, 364. 
Merchant adventurers, 29. 
Message of president, 85, 97, 170. 
Militia, 208. 
Money, regulation of the value of, 

237, 298. 
Money, when to be issued from 

treasury, 307. 
Money-bills, 133. 
Montesquieu, Spirit of Laws, 114. 

Name of United States, 274. 

Nationality, 261, 266, 309. 

Naturalization, 189. 

Navy, 304. 

New England, charter of, 35. 

New England towns, 318, 320, 

325, 33^, 340, 342. 

New "England union, 219. 

New Hampshire, grants of, 41 • 
commission for, 55 ; first consti- 
tution of, 71 ; rejected constitu- 
tion of, 87 ; second constitution 
of, 88. 

New Jersey, constitution of, 77. 

New states, 311. 

New York, constitution of, 83. 

Nobility, titles of, 2H. 

Non-importation agreements, 238. 

Obligation of contracts, 262. 

Pardoning power, 96, 167. 

Patents, 188. 

Paterson's plan of union, 261. 

Patrick, David, 347. 

Peace, power to declare, 266. 

Penn, William, 57, 223, 360. 



Pennsylvania, constitutional expe- 
rience of, 21 ; charter of, 41 ; 
first frame of, 56, 65 ; charter of 
privileges of, 65 ; constitution of, 

79- 
Peters, Hugh, 346. 
Peters, Richard, 235. 
Petition, right to, 207. 
Pinckney's plan of union, 258. 
Post-office, 307. 
Presents, 211. 

Presiding officer of senate, 129. 
Primogeniture, 324, 369. 
Prisoner's privilege of counsel and 

witnesses, 203. 
Privilege from arrest, 132. 
Privy council, 76, 222. 
Procedure of Congress, 143. 
Profit, offices of, 211. 
Punishments, 205. 
Puritans, Dutch influence among, 

343- 

Quartering of soldiers, 209. 
Quorum of Congress, 102. 

Raleigh, Sir Walter, his charter, 

19, 26, 105. 
Randolph's plan, 255. 
Religion, freedom of, 190, 324, 

357, 362. 
Representation, 234, 245, 267, 

371. 
Representatives, house of, 117. 
Republican government in a state, 

311- 

Rhode Island, charter of, 24, 47 ; 
patent for, 44 ; not in New Eng- 
land union, 221. 

Rights, bill of, 54, 62, 67, 81. 



397 



Index 



''"'^^ 



Salaries, 313. 
Schools, free, 370. 
Seizures and searches, 1 99. 
Senate, 18, 63, 72, 73, 75, 100, 123, 

129. 
Separate departments, 109. 
Servants, escape of, 220. 
Slavery, 311. 

Soldiers, quartering of, 209. 
South Carolina, constitution of, 73 ; 

second constitution of, 87. 
Sovereignty of states, 284. 
Speakership of Congress, 143. 
Spencer, Herbert, 314. 
States, controversies between, 305 ; 

restrictions on, 279. 
Stevens, on the constitution, 13. 
Stone, Frederick D., 217. 
Subject, equivalent to citizen, 205. 

Taxation, 232, 287. 

Taylor on the Constitution, 13. 

Territory, 31 1. 

Thayer, on Unconstitutional Law, 

185. 
Towns of New England, 13, 318, 

320, 325, 336, 340, 342. 
Treason, 210, 250, 308. 
Treaty, power to make a, 306. 
Trial by jury, 201. 
Twice in jeopardy, 205. 

Unconstitutional laws, prevention 

of, 182. 
Union, plans of, 218, 267 ; plan of 



Charles II., 222; plan of James 
II., 222 ; plan of, in 1690, 223 , 
plan of William Penn, 223 ; plan 
of Lords of Trade, 227 ; D' Ave- 
nant's plan, 228 ; a Virginian's 
plan, 228 ; Livingston's plan, 
229; Earl of Stair's plan, 229; 
Coxe's plan, 230 ; Franklin's 
plan, in 1754, 231 ; Peters'splan, 
235 ; Hutchinson's plan, 235 ; 
Johnson's plan, 236 ; Galloway's 
plan, 238 ; Franklin's plan, in 
1775, 238, 240. 

Vacancies in office, 312. 

Vermont, constitution of, 86 ; sec- 
ond constitution of, 89. 

Veto power, 17, 84, 95, l6i, 234. 

Virginia, constitutional experience 
of, 21 ; first charter of, 27, 29 ; 
second charter of, 30 ; third char- 
ter of, 32 ; house of burgesses of, 
33 ; charter dissolved, 34 ; con- 
stitution of, 75. 

Von Hoist, 314. 

"War, power to declare, 96, 1 40, 

226. 
Webster, Noah, 252. 
Weights, standard of, 298. 
West India Company, 356. 
West Jersey, Concessions of, 50, 

53- 
Winslow, Edward, 351. 

Winthrop, Governor, ^;^^y ^^6. 



THE END. 



Electrotyped and Printed by J. B. Lippincott Company, Philadelphia, U.S.A. 

398 



